Manish v. Torture Claims Appeal Board and Another

HCAL 845/2018

[2020] HKCFI 2328

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 845 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 27-year-old national of India who entered Hong Kong illegally on 2 February 2014 and was arrested by police on 4 March 2014.  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 uncles over their land dispute with his father and/or by his girlfriend’s family who were against their relationship.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Mukandpur, District Nawan Shehar, Punjab, India.  After leaving school he assisted in his father farming on the land inherited from his grandfather, and dated his former schoolmate from the same village.

3.However, when his girlfriend’s family discovered their relationship, they were against it and made threats to the Applicant to put an end to it, and when his uncles also tried to take his father’s land by force or else they threatened to kill his father and his family, and as his father was poisoned and died in April 2011 of which the Applicant suspected was caused by his uncles over their land dispute, the Applicant became fearful for his life, and departed India on 26 March 2011 for Hong Kong where he overstayed and raised a torture claim which was subsequently rejected by the Immigration Department, and he was repatriated to India in May 2012.

4.Upon returning to India, he did not return home and instead stayed in Delhi where he was involved in an incident for which he was convicted of the offence of molesting a girl and was sentenced to prison for 3 months.

5.On 29 January 2014 he again departed India and this time for China, and from there he tried to enter Hong Kong on 31 January 2014 but was refused entry, he then sneaked into Hong Kong on 2 February 2014, and upon his arrest by the police, he raised his non-refoulement claim on the same basis as before, for which he completed a Supplementary Claim Form on 12 September 2016 to the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.Whilst released on recognizance pending determination of his claim, the Applicant was arrested by police on various occasions for the respective offences of possession of dangerous drugs, indecent assault, criminal intimidation, and theft for which he was sentenced to two separate terms of imprisonment.

7.It would also be relevant to note here that during his screening process before the Immigration Department, the Applicant had put forward various reasons not to attend the screening interviews arranged by the immigration officer and instead chose to provide information of his claim only in writing through his DLS lawyer (see [6] – [7] of the Decision of Director of Immigration).       

8.By a Notice of Decision dated 30 November 2016 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk included risk of his absolute or 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”).

9.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his uncles or his former girlfriend’s family upon his return to India as low due to the absence of or low intensity and frequency of past ill-treatment from them, that his problems with them were personal or family disputes 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 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 young man with working experience to move to other part of India away from his home district in large cities such as Mumbai or Delhi where he had stayed before without incidents and where it would be difficult if not impossible for his perceived enemies to locate him.

10.On 13 January 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, but for which he failed to attend the oral hearing scheduled on 11 December 2017 before the Board, and later his explanation that he had gone to the Social Department on that day instead to process his application for financial aid was not accepted by the Board which then proceeded to deal with his appeal in his absence and on paper.  On 9 April 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

11.In its decision the Board found it unacceptable of the Applicant’s explanation for his failure to attend the scheduled oral hearing of his appeal and his subsequent failure to provide any further details or documentary evidence in support of his claim of having gone elsewhere to tend to other matter on that day and given his past failures to attend screening interviews before the Immigration Department, and proceeded to find such serious inconsistencies and discrepancies in his claims of being threatened by his uncles over the land dispute or by the family of his former girlfriend that it concluded that he is not facing any risk related to any of the proscribed forms upon his return to India that his claim for non-refoulement protection failed on all applicable grounds.   

12.On 15 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, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely repeated his claim that he would be killed if refouled to his home country but without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for his application.  

13.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 the 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.

14.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 116 – 143 in its decision, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

15.Furthermore, the fact is that it has been established by the Director in his 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, 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.     

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 18^th day of September 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