Sanjeev Kumar v. Director of Immigration and Another

HCAL 319/2018

[2018] HKCFI 2811

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 319 of 2018

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 oral submissions by the Applicant 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 39-year-old national of India who arrived in Hong Kong on 19 November 2014 with permission to remain as a visitor up to 3 December 2014 when he did not depart and instead overstayed until 9 December 2014 when he surrendered to the Immigration Department and lodged a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by supporters of rival political party Shiromani Akali Dal Party (“SAD”).  He has since been released on recognizance pending the determination of his claim.

2.The applicant was born and raised in Bassi Kalan, Hoshiarpur, Punjab, India.  After leaving school he got married with children and in 2011 became a supporter of the Indian National Congress Party (“INC”) regularly attending their rallies and distributing posters for the party.

3.In the 2014 general election in India, the applicant participated in his party’s local election campaign activities during there were frequent clashes between supporters of rival parties, and one day in March 2014 during one of the local campaigns, there was a confrontation between supporters of INC and SAD but soon they were dispersed by the police.

4.A few days later when the applicant together with his fellow supporters were promoting INC in a neighboring village, they were attacked by a group of SAD supporters with fists and kicks but were soon stopped by passers-by before anyone was seriously injured. 

5.One day in April 2014 while the applicant was travelling with his fellow supporters on a vehicle to vote in a polling station, they were intercepted by a group of SAD supporters and were attacked by them with hockey sticks but the applicant managed to escape and reported the matter to the police who promised to carry out investigation but with no result.

6.Several days later the applicant received a threatening telephone call from some SAD supporters, and when SAD won the election and remained as the ruling party of Punjab and that one of his friends had been beaten up by their supporters, the applicant became fearful of the SAD supporters and moved his family to his in-laws’ place in Village Kalkat in Hoshiarpur, and later he moved by himself to his uncle’s place in another village in Sherganh, and after a month or so he again moved to his aunt’s place in Baklore in Mukandpur, and in August 2014 he moved to his friend’s place in Chandigarh where he stayed until 6 November 2014 when he departed India for China and then to Hong Kong when he lodged his non-refoulement claim.

7.Whilst released on recognizance pending the determination of his claim the applicant was arrested by the police for robbery for which he was subsequently convicted and sentenced to prison for 38 months, during which he completed a Non-refoulement Form on 29 February 2016 with legal representation from the Duty Lawyer Service but failed to attend any screening interviews before the Immigration Department due to alleged sickness without any medical proof despite requests from the Department.

8.By a Notice of Decision dated 8 December 2016 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 his absolute or non-derogable rights under the Hong Kong Bill of Rights (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“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”).

9.In his decision the Director took into account of all the relevant circumstances of the applicant’s claim and found no substantial grounds for believing that the claimed risk of harm upon his return to India is real and foreseeable due to the low intensity and frequency of past ill-treatment from those SAD supporters, that such past ill-treatment did not attain the minimum level of severity under any of the applicable grounds, that there was no evidence that he had been specifically targeted by the SAD supporters in any of those incidents nor is there any reason for them to do so in future, that in the absence of official involvement that state or police protection would be available to the applicant if resorted to, and that reliable and objective Country of Origin Information 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 2.9 million square kilometers that it would not be unduly harsh for the applicant as an able-bodied adult with working experience to move to other areas away from his home district in large cities such as Delhi or Mumbai where it would be difficult if not impossible for  those SAD supporters to locate him.

10.On 21 December 2016 the applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, for which he attended an oral hearing on 30 January 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 22 February 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

11.In its decision the Board upon hearing the applicant found his evidence vague, inconsistent and unpersuasive in relation to his alleged political activities or involvement in INC and rejected his claim that he was ever involved in any political activities for INC or at all in India, and hence did not accept that he was ever threatened or attacked by SAD supporters, and concluded that there is not a real risk that he will face any of the proscribed forms of harm should he return to India, and that even if the alleged threats or assaults did occur or that such risk still persist, that it was localized in his home area that it would not be unreasonable for the applicant in his circumstances to safely relocate to another part of India such as New Delhi.

12.On 28 February 2018 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 it he put forward the following grounds for his intended challenge:

(1)  that the Director and the adjudicator reached the wrong decision in assessing his non-refoulement claim;

(2)  that their decisions were unreasonable and unfair under the Wednesbury test;

(3)  that they failed to take into consideration that right to life must be protected from extra-judicial killings which the applicant may face if he is deported to India; and

(4)  that the adjudicator failed to give him sufficient time and opportunity to arrange relevant evidence to support his non-refoulement claim and his appeal.  

13.These are however all just broad and vague assertions of the applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case, or how the Director or the adjudicator had erred in the decision, or in what way were their decisions unreasonable or unfair under the Wednesbury test, or what relevancy were extra-judicial killings to his case.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant.

14.As for his complaint of not given sufficient time or opportunity by the adjudicator to provide evidence in support of his claim or his appeal before the Board, there are again no particulars or elaboration given, and of which he never raised any issue or requested for further time in his appeal before the Board or during his oral hearing before the adjudicator.  Even now in his application for judicial review or his oral hearing before me, he did not provide any additional evidence or make any further representation in respect of his claim.  In the premises I do not find any merit in this complaint of his either.

15.The fact is that the applicant’s claim was rejected by the Board on his credibility based on the evidence available with the benefit of hearing him before the adjudicator and for the detailed analysis and reasoning set out in paragraphs 104 – 137 of the Board’s decision, in which the applicant has failed to identify any legal errors or procedural unfairness or irrationality other than those vague assertions noted above without any particulars or elaborations. 

16.As has been repeatedly emphasized by the Court of Appeal, evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Re Litoun Mounsy [2018] HKCA 537. 

17.Further, as it has been established by both the Director and the Board in their respective decision that the risk of harm in the applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

18.In the premises and 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.

19.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 3^rd day of January 2019.

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