Anil Kumar v. Torture Claims Appeal Board

HCAL 447/2018

[2019] HKCFI 508

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 447 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 31-year-old national of India who entered Hong Kong illegally on 12 November 2014 and was arrested by police on 26 February 2015.  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 girlfriend’s family as they opposed the relationship.  He has since been released on recognizance pending the determination of his claim.

2.The applicant was born and raised in Jaipur Teh, Safidon, Jind, Haryana, India.  After leaving school he worked as a salesman of mobile phones in Haryana.

3.In early 2014 he started dating his girlfriend from a wealthy family of higher caste and with political connection, and so they kept their relationship a secret from her family.  However, one day they were seen by his girlfriend’s elder brother who together with several of his friends then confronted the applicant and proceeded to assault him by punching and kicking him until they were restrained by some passers-by, and before he left the elder brother warned the applicant to stop seeing his sister or else he would kill him.

4.As the applicant did not suffer any serious injuries from the assault he did not report it to the police, but when he was told by his girlfriend that after her father had learnt of their relationship, her father was furious and was adamant to put an end to their relationship, and so the applicant decided to elope with his girlfriend, but before he could do so, his girlfriend’s brothers together with several of their people came to his place of work and attacked him with hockey sticks until they were restrained by other shop keepers.

5.After the assault the applicant went to the local hospital for treatments to his injuries, and on the following day he made a report to the local police who agreed to conduct an investigation but as no arrests were eventually made, the applicant feared that he would be attacked again and therefore on his father’s advice he departed India on 22 July 2014 for Hong Kong, but when he was refused permission to land by the Hong Kong Immigration Department, he was turned back to India on 25 July 2014.

6.One day after his return to his home in India and whilst he was out, his girlfriend’s brothers with several other men came to his home looking for him, and when they could not find him, they warned his mother that if they saw him again they would kill him.  Fearing for his life the applicant therefore decided to leave India again, which he did on 8 November 2014 for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he raised his non-refoulement claim, for which he completed a Non-refoulement Claim Form on 22 February 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

7.Whilst being released on recognizance pending determination of his claim, the applicant was arrested by the police on 22 November 2015 for robbery and for which he was subsequently convicted and sentenced to 38 months’ imprisonment.

8.By a Notice of Decision dated 3 August 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”).

9.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 his girlfriend’s family upon his return to as low due to the low intensity and frequency of past ill-treatment from them, that it was a private personal dispute between the applicant and his girlfriend’s family 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 3.2 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 where it would be difficult if not impossible for his girlfriend’s family to locate him.

10.By a Notice of Further Decision dated 21 August 2017 the Director again rejected the applicant’s claim after receiving and considering additional information from him 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”).

11.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, and for which he subsequently attended an oral hearing on 27 December 2017 before the Board during which he however declined to give evidence or to answer any questions put to him by the adjudicator for the Board.  On 24 January 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

12.In its decision the Board found the treatments that the applicant claimed to have received from his girlfriend’s family did not attain the level of severity under any of the applicable grounds, that his intention of coming to Hong Kong was not in the circumstances for the purpose of seeking non-refoulement protection, and that police protection as well as internal relocation are available in India that being an able-bodied adult with years of work experience that the applicant can without difficulty relocate to other places such as Delhi to avoid his girlfriend’s family.

13.On 19 March 2018 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no grounds for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely stated as follows:

“ I made asylum claim in 2015, my RBCL-538-15. After I arrived in Hong Kong from India to save my life, then after the refusal of my unified screening mechanism, I appealed against the decision of the case officer, and the Adjudicator held their decision unfairly in my appeal against the decision of the Director of Immigration. So I want to apply for judicial review, so my case can be heard fairly on humanly possible grounds.” [sic]

14.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refouolement 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 in the process before the Board where the 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 in their decisions 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.

15.In the present case the applicant refused to give any evidence before the Board which proceeded to evaluate the risk of harm under his claim based on the materials available to it, and for its thorough and detailed analysis and reasoning as set out in paragraphs 22 – 46 of its decision was entitled to conclude that the applicant failed to show that he needed non-refoulement protection.  In the absence of any error being identified in that decision by the applicant, I do not find any reasonably arguable grounds exist in his intended application. 

16.Furthermore, the fact 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.

17.In the premises and having considered 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 24^th day of May 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