Sharma Rahul v. Director of Immigration and Another

HCAL 191/2018

[2019] HKCFI 157

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 191 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 the Applicant being 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 27-year-old national of India who entered Hong Kong illegally on 21 June 2014 and was arrested by police on 13 August 2014.  After he was referred to the Immigration Department for investigation, he lodged a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his paternal uncle who was jealous of the fortune of his business and his future inheritance in his father’s assets.  He has since been released on recognizance pending the determination of his claim.

2.The applicant was born and raised in Ishwar Nagar, Bhadroya, Pathankot, Punjab, India. After leaving school he assisted in his father’s scrap business who also owned many shops, and later he also engaged in his own mobile phone accessory business.

3.His paternal uncle who also lived in Pathankot with his own scrap shop in Himchal Pradesh but was less successful in his own business and had become jealous and resentful about the wealth of the applicant’s father and the applicant’s success in his own business, and despite having been given several shops by the applicant’s father to help him out, he remained greedy and frequently asked for more financial help from the applicant’s father.

4.For his own mobile phone business the applicant frequently took business trips to Hong Kong.  One day in late 2013 his father upon hearing that his uncle was jealous of the applicant and planned to attack him advised the applicant to avoid his uncle by staying in Hong Kong, but in January 2014 during his visit of his parents in Pathankot, the applicant was attacked from behind by an unidentified person who smashed a glass bottle at the back of his head and lost consciousness.

5.Upon regaining consciousness the applicant found himself in a hospital for his head injury.  Upon discharge from the hospital he left India for Hong Kong on 13 January 2014, but when he was refused entry he returned to India where he stayed at his aunt’s place in Ludhiana for six months without any incidents, but when he heard that his uncle had demanded that he be given more shops and threatened to harm the applicant, and as his parents were concerned about his uncle’s political connection with the powerful political party Shiv Sena in Punjab, they advised the applicant to leave India for his own safety, which he did on 16 May 2014 when he departed for China, and from there he sneaked into Hong Kong and subsequently lodged his non-refoulement, for which he completed a Non-refoulement Claim Form (“NCF”) on 10 May 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service. 

6.By a Notice of Decision dated 9 September 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 torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights (“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”).

7.In his decision the Director took into account of all the relevant circumstances of the applicant’s claim and assessed the risk of harm to the applicant upon his return to as low due to the absent or low intensity and frequency of past ill-treatment from his paternal uncle, that there is no evidence of any real intention of his uncle to seriously harm or kill him, that it was a private family dispute without any 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 (“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 2 million square kilometers that it would not be unduly harsh for the applicant as an able-bodied young man with work experience to move to other areas away from his home district in large cities such as Delhi or Ludhiana where it would be difficult if not impossible for his uncle to locate him.

8.By a Notice of Further Decision dated 4 August 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”).

9.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, the notice of which he filed on 19 September 2016, and for which he attended an oral hearing on 29 January 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 30 January 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.In its decision the Board accepted the applicant’s account of the dispute with his uncle over the wealth and assets of the applicant’s father and that his uncle had made threats to his father that he would attack the applicant, but found no evidence that his uncle to have anything to do with him being hit with a glass bottle, that the applicant had failed to establish any risk of harm or ill-treatment of sufficient severity under any of the applicable grounds or that his life would be at risk if refouled to India, and that even if such risk were to persist after all these years that it would be avoidable if the applicant were to relocate to another place in India as it would not be unreasonable or unduly harsh for him as an able-bodied  young man to move to other large cities such as Delhi, Chandigarh, Jalandhar, Amritsar or Ludhiana where it would be impossible for his uncle to locate him.     

11.On 8 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 USM claim;

(2)  that their decisions were not reasonable or fair as required by the Wednesbury test;

(3)  that they failed to consider that right to life must be protected from extra-judicial killings which he may face if deported to India; and

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

12.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 Board had erred in their decisions, or in what way were their decisions unfair or unreasonable, or what relevancy that extra-judicial killings were to his case.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant.

13.As for his complaint that the adjudicator failed to give him sufficient time or opportunity to provide his evidence in support of his claim or his appeal, this issue was never raised in his appeal before the Board or at his oral hearing before the adjudicator, nor did he ever request the adjudicator for further time or opportunity to submit additional evidence or information.  Even now in his application before me he did not adduce further evidence or request for further time or opportunity to do so.  As such I do not find any merit in this complaint of the applicant either.    

14.The fact is that 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.

15.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.

16.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 18 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