Vijender Kumar v. The Adjudicator of the Non-refoulement Claims Petition Office Appointed To Determine the Applicant’s Petition and Another

HCAL 839/2018

[2019] HKCFI 1345

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 839 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 28-year-old national of India who entered Hong Kong illegally on 21 September 2015 and was arrested by police on the same day.  After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his paternal uncle and his sons over a land dispute in his home village in India.  He was subsequently released on recognizance pending the determination of his claim.

2.The applicant was born and raised in Niwarsi, Haryana State, India.  After leaving school he worked as a farmer in his father’s farmland in his home village inherited from his grandfather and which were adjacent to his paternal uncle’s inherited share of the farmland in the village.

3.One day in July 2015 while the applicant and his father were working in the farmland, his paternal uncle and sons came over to raise issue over the ownership of the farmland, and when it turned into a heated argument, they attacked the applicant and his father with wooden sticks causing minor injuries to both of them.

4.After the incident the applicant’s father went to the village council to complain about the assaults but to no avail as the uncle was an influential man in the village with political connections.

5.Several weeks later one day when the applicant was working on his father’s farmland, his uncle came over and scolded him with abusive language that the applicant lost his temper and slapped his uncle twice on his face.

6.On the same evening while he was out, the applicant was informed by his father that his uncle and sons had come to their home with wooden sticks and hatchet looking for him, and when they did not find him they left with a warning to his father that they would kill the applicant for insulting his uncle.  As a result the applicant did not go home and instead fled to Delhi where he took shelter at a friend’s place.

7.However, as he was fearful that his uncle would hunt him down in Delhi and decided that it was no longer safe to remain in India, he therefore departed on 18 September 2015 for China, and from there he sneaked into Hong Kong and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 22 August 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

8.By a Notice of Decision dated 12 September 2017 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 all the relevant circumstances of the applicant’s claim and assessed the level of risk of harm from his paternal uncle and sons to the applicant upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that as the applicant was not the legal owner of the farmland in dispute that there was no real reason or intention on their part to harm or kill him, that in any event it was a private family dispute over land 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 2.9 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 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 his uncle to locate him.

10.On 19 September 2017 the applicant filed an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 25 April 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 27 April 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

11.In its decision the Board found the applicant’s evidence vague, implausible and unpersuasive that he was not considered as a credible witness, and rejected his claim that he or his family had any dispute with his uncle or cousins over the farmland or that his uncle had any political profile or influence, or that the applicant had ever been threatened or assaulted by his uncle or his sons, or that he had had any well-founded fear of being harmed or killed by them as claimed, and concluded that the applicant had failed to establish his non-refoulement claim on all applicable grounds.    

12.On 14 May 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 put forward the following grounds for his intended challenge:

(1)  that the Director failed to appreciate the importance of the presence of state acquiescence in the applicant’s case which led to an unfair outcome in rejecting his non-refoulement claim;

(2)  that the Director failed to recognize that the applicant was tortured at the behest of and in full collusion of the police and the state law enforcement agencies as well as politicians that his case was the direct result of misconduct of the police;

(3)  that the Director failed to take into account or place sufficient weight in the fact that the state should be rendered liable to the applicant by its failure to provide reasonable protection to its citizens;

(4)  that the Director failed to properly consider or place sufficient weight in the relevant COI that the police in India would not be able to protect its citizens;

(5)  that the Director failed to recognize the corruption and incompetency of the administration in India in the assessment of the applicant’s case;

(6)  that the Director failed to apply high standards of fairness in his consideration of the applicant’s case; and

(7)  that the adjudicator failed to give the applicant sufficient opportunity to arrange relevant evidence for his claim or to make sufficient enquiries of his case before finalizing his decision in dismissing 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 Board had erred in their decision, or how would state acquiescence be relevant to his case, or in what way did the Director or the adjudicator fail to take into account of or place sufficient weight in relevant COI, or how did the adjudicator fail to give him sufficient opportunity to provide further evidence in support of his claim when he did not even make any such request when he appeared before the Board for his appeal.  In fact none of these assertions were elaborated or presented with any particulars or specifics by the applicant, and that clearly it was factually incorrect for him to claim that he had been tortured at the behest of or in collusion of the Indian police or authorities when even on his own case that the alleged threats came only from his uncle or his sons arising from a family dispute and without any evidence of any official involvement.  As such I do not find any basis or merits in any of these grounds of his.

14.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: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

15.In the applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 23 – 36 of its decision and with the benefit of hearing him in oral testimony and in his answers to questions raised of his claim at the oral hearing, and in the absence of any error of law or procedural unfairness or irrationality in the Board’s decision being clearly and properly shown by the applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

16.Furthermore, the fact that it has been established by the Director in his decision that the risk of harm in the applicant’s claim which if true is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, a decision also confirmed by the Board, 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 12^th day of July 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