Kapoor Shailesh v. Torture Claims Appeal Board /Non-refoulement Claims Petition Office and Another

HCAL 975/2018

[2020] HKCFI 262

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 975 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 54-year-old national of India who last entered Hong Kong illegally on 4 January 2017 and was arrested by police on 11 January 2017.  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 the family of a victim struck and killed by him in a traffic accident.  He was subsequently being released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Dehradun, Uttarakhand, India. After leaving school he worked as a driver in his home district taking tourists around to make his living.

3.One day in November 2013 while he was driving his car along the road to Dehradun,a motorcycle from the opposite lane crashed onto his car and the motorcyclist later died from his injuries in the hospital.

4.After the accident, the Applicant heard that the victim was the son of a local wealthyand famous businessman in Dehradun with political connections, he therefore fled to Delhi and asked his friend to negotiate with the victim’s father Inderjeet to try to settle the matter,but when he was told that Inderjeet demanded a huge sum as compensation for the loss of his son, and when the Applicant indicated that he could not afford the amount, he was told that Inderjeet had threatened to kill him instead, and so the Applicant became fearful for his life, and so he departed India on 13 December 2013 for Hong Kong where he subsequently overstayed and raised a non-refoulement claim, but which he later withdrew and was repatriated back to India on 31 October 2014.

5.On 28 December 2014 the Applicant again arrived in Hong Kong, but was refused permission to land and was subsequently repatriated to India when he resumed his negotiationwith Inderjeet through his friend to settle their dispute, but when it became unsuccessful, one day in February 2015 he was assaulted by some unknown men with knives that he suffered a head injury and was taken to the hospital for treatments and then discharged.

6.Afterwards the Applicant suspected that those men were sent by Inderjeet to kill him, but he did not report the attack to the police, and as he was still fearful for his life,he therefore departed India one day in February 2015 for China, and from there he later  sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 16 August 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.By a Notice of Decision dated 31 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 and non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“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”).

8.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 Inderjeet and his men upon his return to India as low due to the absence or low intensity and frequency of past ill-treatment from them, that it was a private personal dispute between them without any official involvement that state 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 wouldnot be unduly harsh for the Applicant as an able-bodied adult with work experience to move to other area of India away from his home district in large cities such as Mumbai where it would be difficult if not impossible for Inderjeet or his men to locate him.

9.On 6 September 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 10 May 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 25 May 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.In its decision the Board accepted the Applicant’s account of being involved with the traffic accident and the resultant negotiations with the victim’s father over compensation,but found no reliable or objective evidence that he had been at risk of harm before his arrival in Hong Kong or upon his return to India, and that in any event and in the absence of any evidence that Inderjeet’s influence would extend beyond Dehradun, it concluded that it would not be unreasonable or unduly harsh for the Applicant to safely relocate to other partsof India such as New Delhi where it would be impossible for Inderjeet or his men to locate him.  

11.On 30 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 in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)  that the Board rejected his non-refoulement claim without determining it fully or fairly;

(2)  that it was unfair that he was not given legal representation for his appeal before the Board;

(3)  that it was not fair that he was not given any language assistance in his appeal before the Board including translating those documents in the hearing bundle for his appeal;

(4)  that the Director failed to properly balance his reliance of those COI for and against his case in the assessment of his claim; and

(5)  that there were no reasons given for not requiring the attendance of the Director at his appeal hearing before the Board which shows that the Director was not concerned about his claim.

12.Some of these complaints of the Applicant such as Grounds (1) and (4) are just broad and vague assertions without any particulars or specifics or elaborations of how they apply to his case that I do not find either of them reasonably arguable for his intended challenge.

13.As for his complaint under Ground (2) of not being provided legal representation inhis appeal before the Board, the Court of Appeal has already held that neither the high standardsof fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute rightto free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37, and Re Zafar Muazam [2018] HKCA 176.

14.The Applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify and make representation in his appeal hearing beforethe Board and to answer questions put to him by the adjudicator without difficulty.  I do not find anything amiss arising from the lack of legal representation in his appeal process, and I do not think this ground is reasonably arguable.

15.Regarding his complaint under Ground (3) of not given any language assistance in respect of the documents in his hearing bundle for his appeal before the Board, it seems clear to me that he should be well familiar with most of them such as his NCF which was completed on his instructions to his legal representation from DLS, while the Director’s decision must have already been interpreted to him by his lawyer from DLS, and that he was assisted by an interpreter at his appeal hearing before the Board during which he never raised any issue with the translation of those documents.  In the absence of any particulars or specifics to demonstrate that the basis of his claim has indeed been wrongly interpreted or wrongly understood by the Board, I find this complaint of the Applicant simply speculative and without basis.

16.As for his complaint under Ground (5) over the non-attendance of the Director at his appeal hearing before the Board, I fail to see any rationale for insisting that the Director or his representative be present, as the mechanism for his appeal which is a rehearing of his claim to be before a different person is actually a safeguard for fairness, and I fail to see how he could be prejudiced or adversely affected by the non-attendance of the Director at his oral hearing before the Board.  There is simply no basis or merit in this ground of the Applicant either.

17.As has been repeatedly emphasized by the Court of Appeal, the evaluation of risk of harm is primarily a matter for the Director and the Board who are entitled to make their evaluation based on the evidence available to them, and 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 properly and clearly identified by the applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see 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.

18.In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their decisions 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.

19.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.

20.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 27^th day of May 2020.

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