Mithun Kumar v. Torture Claims Appeal Board

HCAL 984/2018

[2021] HKCFI 1423

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 984 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 32-year-old national of India who entered Hong Kong illegally in June 2014 and was arrested by the police on 18 June 2014 for using a forged identity card for which he was subsequently convicted and sentenced to prison for 15 months, during which he raised a non-refoulement claim with the Immigration Department on the basis that if he returned to India he would be harmed or killed by the head of his home village over a land dispute. 

2.The Applicant was born and raised in Village Graham Bhaisauli, Zilla-Gorakhpur, Uttar Pradesh, India, and after leaving school he went to work as an electrician in New Delhi.

3.One day in early 2014 while in Delhi, he received a telephone call from his friend that something urgent happened to his family that he should return to his home village as soon as possible, and upon his return to his home village the Applicant was told that his parents and siblings had all been murdered by the village head over a land dispute, and several days later the village head came with several men to his home to demand that he transferred his father’s land to him, and when he refused, they proceeded to beat him until his neighbours intervened, and fearing further attack by those men, the Applicant then fled from his home village to return to Delhi, and later departed India on 28 April 2014 for China, and from there he sneaked into Hong Kong, 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 8 September 2017 and attended a screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

4.While released on recognizance pending the determination of his claim, the Applicant was again arrested by the police on 22 March 2017 for undertaking unauthorized employment for which he was convicted and sentenced to another imprisonment of 15 months.     

5.By a Notice of Decision dated 10 October 2017 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 all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from the village head and his men upon his return to India as low due to the absence of any reliable evidence of any threats from them or of his family having been murdered at all, that in any event 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”) shows 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 parts of India away from his home district in large cities such as Mumbai where it would be difficult if not impossible for him to be located.

7.On 16 October 2017 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 23 March 2018 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 4 April 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board found the Applicant’s claim unreliable in the absence of any reliable evidence in support of his bare assertions, and that in any event with reasonable internal relocation available for him to move safely to other parts of India 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 31 May 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 or his supporting affirmation of the same date. As such 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 Board, 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 parts 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 20^th day of May 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