Rai Amber v. Torture Claims Appeal Board

HCAL 1104/2018

[2021] HKCFI 1044

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1104 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 54-year-old national of India who last arrived in Hong Kong on 4 June 2014 with permission to remain as a visitor up to 7 June 2014 when he did not depart and instead overstayed, and on 19 March 2015 he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by the local leader of rival political party Gorkha Janmukti Morcha (“GJM”). He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Kalimpong, Darjeeling, India. After leaving school he worked in various jobs in his home district, and became a supporter of the political party Bharatiya Gurkha League (“BGL”) without any official post but regularly attended their local meetings and rallies.

3.In the 2014 national election, the Applicant assisted BGL in their local election campaign against their rival GJM, and one day in March 2014 he heard that the local GJM leader was unhappy with his efforts in helping BGL against GJM that he planned to kill or kidnap him, and so the Applicant fled from his home village for other towns and eventually to Kolkata, and from there he departed India in June 2014 for Hong Kong where he subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 25 July 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

4.Whilst being released on recognizance pending determination of his claim, the Applicant formed a relationship with an Indian woman who was also a non-refoulement clamant, and out of their relationship a son was born in 2016 in Hong Kong for whom a non-refoulement claim was also made by the mother based on her own claim and separate from the Applicant’s.       

5.By a Notice of Decision dated 8 November 2016 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 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”).

6.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 GJM people upon his return to India as low due to the absence of any past ill-treatment from them, that there is no reliable evidence of any intention of those GJM people to harm him other than some hearsay, nor is there any reason why they would specifically target the Applicant or to have any adverse interest in him given that he was just a supporter with no official post in BGL, 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 adult with working experience to move to other part of India away from his home district in large cities such as Mumbai where it would be difficult if not impossible for those local GJM people to locate him.

7.On 21 November 2016 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 8 March 2018 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 7 June 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence as to his claim of threats from the local GJM people that it doubted his claim, but found in any event in the absence of any official involvement that reasonable internal relocation within India would be available for him to move safely to other areas away from his home district without any risk of being located by those GJM people that his claim for non-refoulement protection failed on all applicable grounds.  

9.On 15 June 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 asserted that their decisions regarding his non-refoulement claim were incorrect in failing to consider the ground realities in India and that they do not show the actual realities in India but without providing any details or particulars or elaborations how they were so, nor did he put forward any other proper ground for his intended challenge at the hearing of his application.  As such and in the absence of any error of law or irrationality or procedural unfairness in his process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

10.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.

11.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 his 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.     

12.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.

13.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 16^th day of April 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