Case Document

100%Judiciary

HCAL 291/2018

[2020] HKCFI 281

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 291 of 2018

BETWEEN

	Rajan	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent

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 33-year-old national of India who last arrived in Hong Kong on11 February 2006 with permission to remain as a visitor up to 22 March 2006 when he didnot depart and instead overstayed and was arrested by police on 19 May 2007. After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to India he would be harmed or killed by a rich and powerful man in his home town over a property dispute. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Makhu Town, Ferozepur District, Punjab State, India. After leaving school he worked in his father’s confectionary shop in his hometown.

3.One day in early 2005 Johnny, a wealthy landowner in the same neighbourhood of the Applicant’s shop approached the Applicant to offer to buy his father’s shop so that he could build a commercial complex in the same area, and when the Applicant refused,he warned that he would get the shop with or without the Applicant’s agreement as he was a powerful and influential man in the town.

4.Several days later Johnny confronted the Applicant at his shop and shouted abuses at him for refusing to sell his father’s shop to him, and when he started to push the Applicant around, and in the ensuing scuffle the Applicant hit him on the face with a water pot that Johnny collapsed onto the floor with his face bleeding badly, and was subsequently taken to a hospital for treatments.

5.Fearing that the police would be looking for him over the incident, the Applicant fled to Delhi on the same night, and when he was told by his mother that Johnny had sent men to his home looking to kill him in revenge, the Applicant feared for his life and decidedto leave India, and so in May he departed for China, and from there he later travelled to Hong Kong where he subsequently overstayed, and upon his arrest by the police he raised his torture claim which was later taken as a non-refoulement claim upon the commencement of the Unified Screening Mechanism, for which he completed a Supplementary Claim Form on 21 August 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6.By a Notice of Decision dated 9 September 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”).

7.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 Johnny to the Applicant upon his return to India as low due to the absence or low intensity and frequency of past ill-treatment from him, that after all these years that it was doubtful that Johnny would still have any adverse interest in him, that in any event his problem with Johnny was a private personal dispute 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 Johnny to locate him.

8.By a Notice of Further Decision dated 8 August 2017 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”).

9.By then the Applicant was already in the process of appealing to the Torture ClaimsAppeal Board (“the Board”) against the earlier decision of the Director, the notice of whichwas filed on 21 September 2016, and for which he attended an oral hearing on 10 November 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board. On 14 December 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.In its decision the Board found no evidence of any ill-treatments alleged by the Applicant of a severity or character which may amount to any of the risks under the applicable grounds, that in any event such risk was confined to the local area where the Applicant had lived that reasonable internal relocation alternatives available for him to move to another part of India would mitigate or remove such risk that his claim for non-refoulement protection failed on all applicable grounds.

11.On 23 February 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 or in his supporting affirmation of the same date in which he merely attached a copy of the Board’s decision. Nor did he request for any oral hearing for his application.

12.In the absence of any error of law or procedure in the Board’s decision or in the appeal process being shown by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board. 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 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.

13.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.

14.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.

15.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 13^th day of May 2020.

(NG Hang-yin)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or his solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 13^th May 2020 Rajan Applicant’s ref. no.: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 13^th May 2020 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 4948/16/9/327/IN1046 Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)