Sunil Kumar v. Torture Claims Appeal Board

HCAL 1405/2018

[2021] HKCFI 1092

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1405 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 31-year-old national of India who arrived in Hong Kong on 23 June 2014 with permission to remain as a visitor up to 7 July 2014 when he did not depart and instead overstayed and was arrested by police on 15 July 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 the local supporters of rival political party Bharatiya Janata Party (“BJP”) for refusing to join their party. He was subsequently released on recognizance pending the determination of his claim. 

2.The Applicant was born and raised in Village Chanarthal, Kurukshetra, Haryana, India.  After leaving school he worked in a hotel in Kurukshetra and followed his family’s tradition to support the political party Indian National Congress Party (“INC”) as an ordinary member.

3.On several occasions in 2013 and 2014 he was approached by some local BJP supporters to join their party, but he had always refused their request, but after BJP won the general election in 2014, one day he was confronted by a group of BJP supporters who scolded him for refusing to join their party, and proceeded to beat him with wooden sticks that he suffered bruises all over his body and had to be taken to the local hospital for medical treatments. 

4.After the assault the Applicant became fearful for his life, and took shelter at his sister’s home in Ladwa, and then moved to his uncle’s place in Yamun Nager before returning to Kurukshetra when he was later advised by his cousin who worked in Macau to go there where he could find him a job.       

5.The Applicant therefore departed India on 6 May 2014 for Macau where he stayed with his cousin, but as he was given a visa for only one month, and when it expired in June 2014, he then travelled to Hong Kong where he subsequently overstayed, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 26 February 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).       

6.By a Notice of Decision dated 22 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”).

7.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 as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence or reason why he would be specifically targeted by those BJP people given that he was just a low ranking member of INC, that after all these years it is doubtful that there would still be 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 3.2 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 Delhi where it would be difficult if not impossible for those local BJP supporters to locate him.

8.On 29 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 15 January 2018 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board.  On 13 July 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board found insignificant inconsistencies and discrepancies in vital parts of the Applicant’s claim and evidence as to his alleged involvement in INC and threats from BJP that it concluded that he was not a reliable witness and rejected his claim of fear of harm from the local BJP supporters upon his return to India that his application for non-refoulement protection failed on all applicable grounds.

10.On 17 July 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely attached a copy of the Board’s decision and stated that it disregarded the danger and threats that he would face in his home country but without providing any particulars or elaboration how it did so or put forward any other ground the his intended challenge, nor did he request any oral hearing for his application.  As such I do not find any reasonably arguable basis 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 Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 85 – 96 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or irrationality 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.  

13.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.     

14.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.

15.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 22^nd 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