Chinnathambi Raja v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1145/2018

[2021] HKCFI 547

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1145 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 K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review of the Decision dated 15 June 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall deal with his application on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (the “Director”) is the interested party.

The applicant

4.The applicant is an Indian national. He came to Hong Kong on 29 November 2014 as a visitor. He overstayed and surrendered to police on 18 December 2014. He was referred to the Immigration Department where he lodged his non-refoulement claim on 20 December 2014.

5.He claimed that if refouled, he would be harmed or killed by members of the All India Anna Dravida Munnetra Kazhagam (“AIADMK”).  He and his family are supporters of Dravida Munnetra Kazhagam (“DMK”).  In September 2014, DMK filed a suit against the Chief Minister of AIADMK.  As a result, the Chief Minister was convicted and sentenced to imprisonment, which triggered a riot.  There was a dispute between him and the AIADMK members who tried to close down his business of delivery of milk.  In the heat of the argument, he had hit the founder of AIADMK, Rajanayagam and injured him.  Because of this incident, he had to hide himself as AIADMK members were looking for him for revenge.  He therefore came to Hong Kong.  Details of the incidents are contained in paragraph 7 of the Director’s Decision described below and paragraphs 29-41 of the Board’s Decision.

The Director’s Decision

6.The Director considered his application in relation to the following risks:

a.  risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

7.By Notice of Decision dated 8 August 2017 (“the Director’s Decision”), the Director refused his claim for the reason that were no substantial ground for believing that he would be in danger of being harmed or killed by the AIADMK members upon his return to India [11]; that state protection would be available to him [18] and internal relocation was an option open to him [20].

The Board’s Decision

8.The applicant appealed to the Board against the Director’s Decision.  He attended the hearing before the Board on 20 February 2018.

9.By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision for the reasons as set out below.

(1)   The applicant’s claims regarding his altercation with Rajanayagam and his followers and their subsequent pursuit of him, not creditable. [52]

(2)   Even giving the benefit of the doubt to the applicant, the Board found that there was not a real risk the applicant would face any of the proscribed forms of harm should he return to India from Rajanayagam and/or his followers, or anyone else because of an altercation which occurred in September 2014 or for other reason. [54]

(3)   Internal relocation was an option open to the applicant. [58]

(4)   On the reasons above, the Board rejected his claim on Torture risk [61]; BOR 3 risk [62], BOR 2 risk [63] and Persecution risk [65].

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 20 June 2018 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmations in support of his application, he said that he is a supporter of DMK party and he is subjected to threats made by the ruling party AIADMK, whose members may kill people. So, his life will be in danger if he returns to his own country.

DISCUSSION

12.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. See paragraph 9 above.

13.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13.… …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director), the court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

14.His grounds in support of this application do not assist his application.

15.The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

16.There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.

CONCLUSION

17.I therefore refuse to grant leave for the applicant to apply for his intended judicial review.  Accordingly, I dismiss his application.

Dated the 8^th day of March 2021

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