Sellaiah Murugesan v. The Adjudicator of the Non-refoulement Claims Petition Office and Another

HCAL 529/2018

[2019] HKCFI 258

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 529 of 2018

BETWEEN

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

Following:

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The applicant is a 44-year-old national of India who arrived in Hong Kong on 16 September 2012 with permission to remain as a visitor up to 30 September 2012 when he did not depart and instead overstayed until 13 October 2012 when he was arrested by police.  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 a wealthy landowner over certain land dispute.  He has since been released on recognizance pending the determination of his claim.

2.The applicant was born and raised in Tangore District, India where his mother and siblings still live.  After leaving school he worked as a farmer in his village, got married and has three children.

3.After his father died in 2000, the applicant inherited his land in the village in which he buried his father.  In about 2011 MK, allegedly a minister of the central government started some real estate investment in the applicant’s home village and offered to buy his land, but for sentimental reason of his family for the land the applicant declined the offer.

4.Sometime in 2011 MK came to the applicant’s home with his associates and again offered to buy his land so that they could develop their real estate business, but when the applicant refused, they then just left.

5.However, one day in February 2012 when MK again came to the applicant’s home with two men offering to buy his land, and when the applicant again refused, MK turned angry and threatened that one way or the other he would get his land.  Thereafter he would send his men to the applicant’s every week to pester him for the sale which gradually escalated to verbal threats that they would kill him if necessary in order to get his land.

6.Several months later one day in May 2012 when the applicant was riding his bicycle on his way home from work, he was knocked off his bicycle by a vehicle and fell into a river. After he climbed back onto the road, some of his neighbours told him that they recognized the men on the vehicle as the same men who had previously accompanied MK to the applicant’s home, and as the vehicle was of the same brand of the one owned by MK, the applicant suspected it was MK who had sent his men to kill him, and therefore reported the matter to the local police.

7.Upon hearing the applicant’s story, the police invited MK’s personal assistant RJ to the station where RJ told the applicant that the problem would be resolved if he agreed to sell his land to MK, and when the applicant still refused, RJ then left and the applicant was told by the police that it was a private matter between him and MK and that they should try to settle their differences between themselves.

8.Thereafter the applicant would receive telephone calls almost every day from men pressing him to sell his land to MK with threats to kill him that in July 2012 he left his home village to take shelter at his friend’s place in Chennai.

9.However, one day in September 2012 several of MK’s men came to his friend’s place and when they found the applicant alone in the house, they proceeded to punch and kick him until the neighbours intervened that the men then left.  As a result the applicant sustained bruises all over his body, and when his friend returned home and learnt about the attack, he advised the applicant to leave India for his own safety, and so with his help the applicant departed on 16 September 2012 for Hong Kong where he overstayed and subsequently lodged his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 3 August 2015 and attended screening interview before the Immigration Department with legal representation form the Duty Lawyer Service.

10.By a Notice of Decision dated 6 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 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”).

11.In his decision the Director took into account all the relevant circumstances of the applicant’s claim and assessed the level of risk of harm from MK to the applicant upon his return to India as low as the behavior of MK and his men did not show any real intention to seriously harm or even kill him in view of the low intensity and frequency of past ill-treatment from them, that there is no evidence that they would still have any adverse interest in the applicant after all these years, that in the absence of 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 2.9 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 part of India away from his home district in large cities such as Delhi or Mumbai where it would be difficult if not impossible for MK or his men to locate him.

12.By a Notice of Further Decision dated 30 March 2017 the Director again rejected the applicant’s claim upon receiving and considering further submission from him 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”).

13.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 was filed on 19 October 2015, and for which he attended an oral hearing on 6 December 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 9 March 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

14.In its decision the Board was not satisfied that the applicant’s complained acts or conducts of MK and his men amount to torture or CIDTP or that the injury sustained by him attain a minimum level of severity that would amount to the same or to persecution or BOR 2 risk, that in any event it was a private and personal dispute between him and MK that state or police protection would be available to him, and concluded that his claim failed on all applicable grounds. 

15.On 29 March 2018 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking reliefwas given in it or in his supporting affirmation of the same date to which he merely exhibited copies of his claim and decisions, and at the hearing of his application now before me, he simply repeated his claim that his life would be in danger in his home country and that his problems were not yet resolved at home, and asked the Court to reconsider his claim.

16.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim, as the proper occasion for an applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and the process before the Board where the evaluation of 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 in those decisions having been 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.Furthermore, the fact is that it has been established by the Director in his 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, a finding accepted by the Board when it confirmed the Director’s decision, 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 29^th day of March 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