Rajesh Kumar v. Torture Claims Appeal Board /Non-refoulement Claims Petition Office

HCAL 2720/2018

[2021] HKCFI 1513

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2720 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;  or
	consideration of documents and Applicant being absent 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 19 November 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.  On 28 December 2015, he came to Hong Kong as a visitor.  He overstayed and surrendered to the Immigration Department on 19 January 2016.  He lodged his non-refoulement claim with the Immigration Department by written representation on 7 October 2016.

5.He claimed that if refouled, he would be harmed or killed by a man with enmity in his father’s village due to political dispute. Also, his life would be in danger under the threat from his uncle and his two sons because he had property dispute with them.

6.His father was suspected to have been murdered by Ramphal and Anil, supporters of the BLP Party, a rival party to his father’s Indian National Lok Dai.  The matter was being investigated by police, but without anybody arrested.  He was targeted next.  In 2013, whilst he was a class 12 student, he was attacked by some 7 people with bare-hand and iron rods, claiming that they were sent by Ramphal and Anil.  As a result, he did not go to school but took private lessons in order to avoid those people.

7.The land dispute arose after his father’s death. His father inherited a piece of land from his grandfather.  His uncle cultivated on the piece of land for about three years.  He made a claim for the land to the Village Council, which directed his uncle to return the land to him.  His uncle was unhappy about it.  He sent 4 to 5 people with wooden stick to beat him up.  They threatened to kill him if he did not give up the land.  He decided to leave India for Hong Kong.

8.Details of the story are set out in paragraph 6 of the Director’s Decision described below.

The Director’s Decision

9.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”).

10.By Notice of Decision dated 29 March 2018 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated.  The Director found that there was no ground for believing that he would be subjected to any real risk of being harmed or killed if he returned to India [13]; that state protection was available to him [18] and internal relocation was an option open to him [19].

The Board’s Decision

11.The applicant appealed against the Director’s Decision to the Board.  The Board, having considered the authority of St. v Betty Kwan & Ors, CACV 115/2013 §§20-54, decided to deal with the appeal on paper without a hearing.

12.By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision.  The Board found that there was no evidence to show that he should be protected under the Convention for persecution [24( c)]; that state protection was available to him [24(d)]; that there was no substantial ground for believing that he would be subjected to the risks as he alleged if he returned to India [24(e)]; that there was no evidence that the state was involved [27]; that BOR 2 risk was irrelevant to his case [38]; that internal relocation was an option open to him [45].

Application for leave to apply for judicial review

13.The applicant filed Form 86 on 30 November 2018 for leave to apply for judicial review of the Board’s Decision.

14.In his affirmation in support of his application, he set out extensive grounds in support of his application, annexed with a 35-page written submission, which can be summarized below.

(1) Irrationality: failure to consider state acquiescence; selective choice of country of origin information (“COI”); failure to consider a consistent system of human right violations; failure to consider state protection; placing weight on irrelevant matters or facts; the decision-maker being a different person than the interviewing officer.

(2) Procedural impropriety: failure to consider COI; failing to call for psychological and/or psychiatric reports and /or evaluations; applying the incorrect standard of proof; no reasonable basis for reject credibility; failure to consider extended state acquiescence;

(3) Failure to provide adequate reasons as to decisions made.

(4) No proper basis for consideration of internal relocation.

DISCUSSION

15.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

16.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.”

17.His grounds in support of his application above are sweeping.  Most of them are not applicable to his case.  The Board has considered his evidence in the hearing before it and given its reasons for its decisions.  I consider that it is unnecessary to address each of his grounds.  There is no problem with the consideration of the Country of Origin Information by the Board or the application of the law to his case.  The basis for internal relocation as set out by the Director and the Board in their Decisions is sound, and for this reason alone, the applicant is not entitled to the protection he claims.  The Court of Appeal in TK v Michael Jenkins Esq and Director of Immigration [2013] HKC, 526, CA, Hon.  Cheung CJHC, Stock VP and Fok JA held that if internal relocation is available to the applicant and it is not unduly harsh for him to relocate, there is no justification for affording international protection under either the Refugees Convention 1951 or the CAT [32 & 33].  His grounds are therefore rejected.

18.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.

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

CONCLUSION

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

Dated the 3^rd day of June 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