Rajeev Kumar v. Torture Claims Appeal Board /Non-refoulement Claims Petition Office

HCAL 344/2018

[2019] HKCFI 2285

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 344 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 38-year-old national of India who arrived in Hong Kong on 19 July 2015 with permission to remain as a visitor up to 2 August 2015 when he did not depart and instead overstayed and surrendered to the Immigration Department on 6 August 2015 when he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by a certain member of the political party Indian National Congress Party (“INC”) for refusing to rejoin the party.  He was subsequently released on recognizance pending the determination of his claim.

2.The applicant was born and raised in Village Zira, District Firozpur, Punjab, India. After leaving school he worked as a farmer in his family farmland, and became a supporter of INC regularly attending the local meetings and rallies in his home village, and also assisted the local party leader Inderjeet during election campaigns.

3.In about late 2010 when he discovered that Inderjeet was involved in certain illegal activities including taking bribes, the applicant decided to leave INC to join rival party Shiromani Akali Dal (“SAD”), and when Inderjeet learnt about it, his followers started to harass and threaten the applicant for betraying INC.

4.One day in December 2010 while the applicant was on his way to the village market, he was approached by Inderjeet and his men who demanded that he re-join INC, and when he refused, Inderjeet became furious and slapped him on the face, and warned him that there would be serious consequence if he did not heed his demand.

5.About six months later in July 2011, while the applicant was on his way to the market, he was intercepted by Inderjeet and his men who demanded to know whether he had decided to rejoin INC, and when the applicant still refused, they proceeded to beat him with wooden sticks all over his body until some passers-by intervened.  As a result the applicant was taken to a local clinic for medical treatments for bruises and cuts.

6.After the incident the applicant reported the matter to the police but to no avail as he suspected that they were under the influence of Inderjeet.  As he was fearful for his safety, the applicant on 30 November 2011 departed for Singapore where he worked as a waiter until January 2014 when he thought it was safe to return to India.

7.However, one day in April 2014 when he ran into Inderjeet and his men, the applicant was attacked by them with a glass bottle that his arms and hands were cut but he managed to escape from the scene to receive medical treatment in the local hospital.

8.On the following day the applicant fled to Delhi to take shelter in his uncle’s place, but later when he saw one of Inderjeet’s men in Delhi, he feared that Inderjeet would be able to find him there, and decided to leave India again for his own safety, which he did on 19 July 2015 when he departed for Hong Kong where he subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 11 July 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

9.By a Notice of Decision dated 10 August 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”).

10.In his decision the Director took into account all the relevant circumstances of the applicant’s claim and found no substantial grounds for believing that there will be any real or substantial risk of him being harmed by Inderjeet or his men upon his return to India due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention on the part of Inderjeet to seriously harm or kill the applicant other than to pressure him to rejoin INC, 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 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 or Chandigarh where it would be difficult if not impossible for Inderjeet or his men to locate him.

11.On 22 August 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 12 January 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 20 February 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

12.In its decision the Board found no reliable evidence of any real intention on the part of Inderjeet to seriously harm the applicant other than to force him to rejoin INC, that it was doubtful that after all these years that Inderjeet would still have any interest in the applicant being a low level supporter of INC, that in any event that with reasonable internal relocation alternatives available within India for the applicant to safely move away from his home district to large cities such as Delhi where he had stayed before without incidents and where it would be difficult if not impossible for Inderjeet or his men to locate him that his non-refoulement claim for protection failed on all applicable grounds.

13.On 5 March 2018 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely claimed that his problem in his home country has not been solved and asked that he be allowed to remain in Hong Kong until his problem is solved.  As such and in the absence of any error of law or procedural unfairness being shown by the applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

14.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when 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 Nupur Mst v Director of Immigration [2018] HKCA 524. 

15.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.

16.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.

17.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 25^th day of September 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