Gurung Kapil v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 561/2017

[2019] HKCFI 304

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 561 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 39-year-old national of India who arrived in Hong Kong on 29 July 2013 with permission to remain as a visitor until 12 August 2013 but he did not depart and instead overstayed and was arrested by police on 17 December 2013.  After being 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 creditor for failing to repay his loan.  He has since been released on recognizance pending the determination of his claim.

2.The applicant was born and raised in Kolkata, West Bengal, India.  After leaving school he worked as a driver until 2009 when he started a business with a partner GD selling electronic accessories in Kolkata.

3.In 2011 they wanted to expand their business and took out a loan of 6 million Indian Rupees from a money lender KT known to be a local gangster with political connection to the political party All India Trinamool Congress (“AITC”), for which there was no fixed deadline for repayment of the principle sum but they had to pay 30,000 Rupees per month as interest on the loan.

4.On 29 July 2013 the applicant came to Hong Kong for business purpose to look into the electronic wholesale market here, during which he received a telephone call from a fellow business friend who had a shop near his in Kolkata that he noticed that his shop appeared to be empty with no goods or stocks inside and that his partner GD had disappeared.   

5.The applicant immediately called his mother in Kolkata who confirmed that GD had disappeared with all the goods, and that when his creditor KT learnt about it he had also come looking for the applicant demanding for immediate repayment of the loan and made threats to his mother.

6.A few days later the applicant was no longer able to contact his mother whom he later heard from his friend to have serious mental stress due to the threats from KT and his followers and had disappeared.  As a result the applicant feared that he would be harmed or killed by KT if he were to return to India, and therefore overstayed in Hong Kong and lodged his non-refoulement claim after his arrest, for which he later completed a Non-refoulement Claim Form on 30 October 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

7.By a Notice of Decision dated 27 January 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 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”).

8.In his decision the Director took into account all the relevant circumstances of the applicant’s claim and assessed that the level of risk of harm from KT and his men upon the applicant’s return to India as low due to the low or absence of intensity and frequency of ill-treatment from them in the past, that the threats from KT and the mental stress caused to the applicant’s mother were all based on hearsay and his own perception unsupported by any reliable or independent evidence, that his dispute with KT was entirely a private and personal money matter without any evidence of official involvement that state and police protection would be available to the applicant if resorted to, that reliable and objective Country of Origin Information (“COI”) show that there are proper legal and other systems in place to resolve such private monetary disputes for the citizens, and reasonable internal relocation alternatives are also 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 work experience to move to other area away from his home district such as Delhi or Mumbai where it would be difficult if not impossible for KT to locate him.

9.By a Notice of Further Decision dated 7 December 2016 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”).

10.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, which appeal he filed on 1 February 2016, and for which he attended an oral hearing on 1 December 2016 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 16 August 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

11.In its decision the Board upon hearing the applicant in evidence found his disputes or problems in India concern no convention reason, that there is no evidence to show that the applicant or any member of his family had suffered any harm to support any ground for believing that he would face a genuine and substantial risk of being subjected to severe ill-treatment or torture under any of the applicable grounds or that any of his rights under BOR 2 would be violated if he is refouled to India, and that even if he had been able to show that he faced a real or genuine risk of harm as claimed, that such risk was confined to the local area where he had lived that there was no circumstance that would make it unreasonable for him to relocate elsewhere in India in large cities such as Delhi or Mumbai where it would be difficult for KT and his men to locate him.   

12.On 29 August 2017 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward various grounds for his intended challenge which can be summarized as follows:

(1)  that there was procedural impropriety in that the adjudicator failed to carry out sufficient research and inquiry into COI including cherry picking them to support his decision, failing to state why certain COI were preferred over the others, and failing to properly assess and critique his case in light of the relevant COI material and to properly conduct an analysis of the COI material;

(2)  that the adjudicator erred in assessing the level of risk of harm to be low on the reasons given in his decision;

(3)  that there was error/misdirection in law in the adjudicator’s failure to consider the concept of extended state acquiescence;

(4)  that the adjudicator was wrong to speculate that the applicant never received any injuries and that his experience did not amount to persecution without taking into account of the threats received by his mother and that it would also happened to him when he failed to repay his loan;

(5)  that the adjudicator wrongly ignored that COI and police reports that KT and his political party had carried a lot of wrongdoing and illegal activities that would support the applicant’s fear of being harmed or killed by them on his return to India;

(6)  that the adjudicator failed to give sufficient weight to the past ill-treatment received by the applicant or to take into account or put sufficient weight on relevant COI produced by him in support of his claim;

(7)  that the adjudicator was wrong to find the threats from KT made to the applicant was a personal money dispute in his decision to dismiss his claim; and

(8)  that the adjudicator erred in not accepting that the applicant would face genuine and substantial risk or that such risk would be low of being subjected to ill-treatment from KT under BOR 3 risk upon his return to his home country.   

13.These are however just very broad and vague assertions of the applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the adjudicator had erred in the decision, or in what way did the adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or how the adjudicator erred in assessing or finding that the level of risk of harm from KT as low, or what relevancy is the concept of extended state acquiescence to his claim. None of these assertions were elaborated or presented with any particulars or specifics by the applicant.

14.The applicant’s complaints of the adjudicator’s failure to give sufficient weight of past ill-treatment received by him or that it was wrong to find the threats from KT was a personal money dispute are also clearly without any factual basis, as even on his own case put at the highest, there was never any past ill-treatment from KT prior to the applicant’s departure from India, and that it was clearly a private and personal dispute over money due and owed by the applicant to KT, a fact which the adjudicator was perfectly entitled to find based on the evidence available to the Board.     

15.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 or procedural unfairness or irrationality 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: see 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.

16.Further, as it has been established by both the Director and the Board 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 [2013] 1 HKC 526.

17.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.

18.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 1st day of February 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