Munish Kumar v. Torture Claims Appeal Board and Another

HCAL 862/2018

[2021] HKCFI 736

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 862 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 Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 29-year-old national of India who arrived in Hong Kong on 18 March 2014, but when he was refused entry by the Immigration Department, he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by local supporters of rival political party Bharatiya Janata Party (“BJP”).

2.The Applicant was born and raised in Ashok Nagar, District Hoshiarpur, Punjab, India. After leaving school he did not work, and instead in 2009 he travelled to Hong Kong allegedly for sightseeing but was refused entry and was returned to India.

3.Upon returning to his home town, he worked in a garment shop in 2011, and in 2013 he started to support the political party India Congress Party (“INC”) by regularly attending its local activities, but soon he would be harassed and intimidated by some local BJP supporters, and after being beaten up by them on several occasions, the Applicant fled to Delhi in March 2014, and on 18 March 2014 he departed for Hong Kong, and when he was again refused entry by the Immigration Department, he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 30 April 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

4.By a Notice of Decision dated 18 July 2014 the Director of Immigration (“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 Ordinance, Cap 383 (“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”).

5.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 those local BJP supporters upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence to suggest that they had specifically targeted the Applicant for harm given that he was just a supporter with no official post in his party, that it is doubtful after all these years that they would still have any adverse interest in him, 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 2.9 million square kilometers that it would not be unduly harsh for the Applicant as an able-bodied young man to move to other part of India away from his home district in large cities such as Kolkata where it would be difficult if not impossible for those local BJP supporters to locate him.

6.By a Notice of Further Decision dated 6 July 2017 the Director again rejected the Applicant’s claim upon considering additional facts and information from him 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”).

7.By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“Board”) against the earlier decision of the Director, the notice of appeal which was filed on 31 July 2014, and for which he attended 3 oral hearings on 12 January 2015, 29 January 2018 and 20 February 2018 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 19 April 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

8.In its decision the Board accepted that the Applicant may have had his troubles with some of the local BJP supporters but doubted that they would still have any adverse interest in him after all these years, and found that in any event with state/police protection available upon his return to India, as well as reasonable internal relocation for him to move to other area away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.    

9.On 17 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 put forward the following grounds for his intended challenge:

(1)  that the Director failed to appreciate or give proper importance or weight to the presence of state acquiescence in the Applicant’s case which led to an unfair outcome of rejecting his non-refoulement claim;

(2)  that the Director failed to take into account that the Applicant was tortured at the behest of and in full collusion of the police and the state law enforcement agencies that the state would be held liable to the Applicant by cause of the state and the public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(3)  that the Director had listed relevant COI which support the Applicant’s aversions that the police in India would not be able to protect but which the Director failed to consider or give sufficient weight to them and ruled otherwise;

(4)  that the Director referred to those COI which suited his pre-conceived conclusion which is a clear case of unfair attitude in itself enough to render the decision void;

(5)  that the Director failed to recognize that corruption and incompetency of the administration in India is still a very serious problem as supported by various human rights organization reports which stated testament to the Applicant’s assertions;

(6)  that the Director failed to attain high standard of fairness required by the Wednesbury test in the decision which should be considered as unreasonable in the scope of public law;

(7)  that the Adjudicator failed to make sufficient enquiry before finalizing its determination; and

(8)  that the Adjudicator failed to give sufficient chance to the Applicant to arrange relevant evidence for his non-refoulement claim as well as his appeal.  

10.These are however all just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the Adjudicator had erred in their decisions, or what relevancy is the concept of state acquiescence to his claim, or in what way did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or how did the Director or the Adjudicator fail to make sufficient enquiry or to apply high standard of fairness in their determination of his claim, or how did the Adjudicator fail to provide sufficient opportunity for him to submit his relevant evidence in support of his claim or his appeal. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, As such and in the absence of any error of law or procedural unfairness in his process before them or in their decisions being clearly and properly identified by the Applicant, I do not find any of them reasonably arguable for his intended challenge.

11.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.

12.In the Applicant’s case, 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.     

13.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.

14.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 19^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