Chellam Govindan v. Torture Claims Appeal Board and Another

HCAL 845/2017

[2018] HKCFI 1370

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 845 of 2017

BETWEEN

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;     or
	consideration of the documents and the Applicant being present / absent in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The applicant is a 35-year-old national of India who arrived in Hong Kong on 5 June 2009 with permission to remain as a visitor up to 19 June 2009 when he did not depart and instead overstayed until 30 August 2010.  After he was referred to the Immigration Department for investigation, he lodged a torture claim on 2 September 2010 on the basis that if he returned to India he would be harmed or killed over a dispute in his home village concerning the extraction of sand from the Vaigai River which had adversely affected the local water supply and its quality.  He has since been released on recognizance pending the determination of his claim.

2.The applicant was born and raised in Village Perumbachery, Tamil Nadu, India.  After leaving school he worked in his parents’ farmland in his village and joined the political party Anna Dravida Munnetra Kazhagam (“ADMK”) which was a rival party to the more powerful parties of Dravida Munnetra Kazhagam (“DMK”) and Congress Party (“CP”) from neighboring villages.

3.The dispute started in 2008 when supporters of DMK and CP started to remove sand from the Vaigai River for their building purpose and thereby affected the level and quality of the water which were being used by supporters of ADMK in the applicant’s village, which led to the applicant participating in the villagers’ protests by obstructing their lorries from getting near the river bed or their excavation of sand from the river, but were inevitably dispersed every time when the supporters of DMK and CP drove their lorries at the crowd.

4.After the protests some supporter of DMK and CP came to the applicant’s home and assaulted him by punching and kicking him until they were stopped by other villagers. Afterwards the applicant felt that his life was at risk and therefore left India on 4 June 2009 for Hong Kong and lodged his torture claim, and subsequently completed his Non-refoulement Claim Form on 30 June 2015 with legal representation from the Duty Lawyer Service. 

5.By a Notice of Decision dated 29 October 2015 the Director of Immigration (“the Director”) rejected the applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBOR”), Cap 383 (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

6.In his decision the Director assessed the level of risk of harm upon the applicant’s return to India as low due to the low intensity and frequency of past ill-treatment from those supporters of his rival political parties, that in the absence of any involvement of the state or the police in their threats that state protection would be available to the applicant if resorted to, and that objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in India with a large population of 1.2 billion people spread across a vast territory of more than 3.2 million square kilometers that it would not be unduly harsh for the applicant to move to areas away from his home village such as Delhi where he can safely live and work free of any threats from those supporters of DMK and CP.

7.By a Notice of Further Decision dated 10 July 2017 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

8.By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, for which he filed his appeal on 12 November 2015, but as he failed to attend the oral hearing scheduled for 22 March 2017 without any explanation, the Board decided to proceed to deal with his appeal on paper which was subsequently dismissed on 29 September 2017 when the Board also confirmed the decisions of the Director.

9.On 6 November 2017 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in his supporting affirmation of the same date he put forward what I can barely make out the following grounds for his intended challenge:

(1)  that the decisions of the Director and the Board were unreasonable; and

(2)  that they did not rely on relevant COI in their consideration of his claim.

10.These are very broad and vague assertions of the applicant without providing any particulars or specifics or elaborations as to how the Director or the Board had erred in their decisions or how they had failed to rely on the relevant COI in their consideration of his claim or which relevant COI that the applicant is referring to. 

11.Nevertheless, having proceeded to consider the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

12.For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.

Dated the 22^nd day of June 2018.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1