Deepak Kumar v. Torture Claims Appeal Board

HCAL 361/2021

[2021] HKCFI 2170

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 361 of 2021

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 35-year-old national of India who entered Hong Kong illegally on 30 April 2015 and was arrested by police on the same day. 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 his paternal uncle over a land dispute in his home district. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Kaithal District, Haryana State, India where his father owned some farmland inherited from his grandfather but which was coveted by his paternal uncle who also owned other farmland in the same village, and as a result his uncle killed his father over their land dispute some 20 years ago in order to take possession of the land.

3.Upon his father’s death, the Applicant and his brother inherited the title of their father’s farmland, but later when his brother gave up his share, the Applicant became the sole owner and the sole target of threats from his uncle who started to make threats against him in late 2014, and after one incident when he was assaulted by his uncle and his followers for refusing to give up his land, and when the local police refused to conduct any investigation, the Applicant became fearful for his life and fled to Kolkata in January 2015, and on 31 March 2015 he departed India for China, and from there he later 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 22 November 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”). 

4.Whilst released on recognizance pending determination of his claim, the Applicant was again arrested by police on 18 July 2017 for undertaking unauthorized employment and was detained at Lai Chi Kok Reception Centre.    

5.By a Notice of Decision dated 1 December 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 of all the relevant circumstances of the Applicant’s claim and doubted his bare assertions that his uncle had killed his father over the farmland 20 years ago so as to possess the land but without doing anything against the Applicant all those years until late 2014, that in any event it was a private land dispute between them without 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 spread across a vast territory 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 his uncle to locate him.

7.On 12 December 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“The Board”) against the Director’s decision, but for which he failed to attend the scheduled hearing on 6 November 2020 before the Board and thereafter also failed to provide any explanation for his absence, and as a result the Board proceeded to deal with his appeal in his absence and on paper. On 30 December 2020 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board found in the absence of any oral evidence from the Applicant that there were inconsistencies and implausibility in his claim that had not been explained or clarified such as his bare and uncorroborated assertions that his uncle had killed his father 20 years ago over the land dispute, that even if that was true that his uncle thereafter never did anything against him despite the fact that he had as a result of his father’s death inherited the land for some 20 years until late 2014 when he was threatened by his uncle that there is no reliable evidence of any real intention on the part of his uncle to seriously harm or kill him, and that in any event if his claimed threats were real that with reasonable internal relocation available for him to safely move to other area of India away from his home district without any risk of being located by his uncle that his claim for non-refoulement protection failed on all applicable grounds.    

9.On 16 March 2021 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 just stated that he does not agree with the decision but without putting forward any proper grounds for his intended challenge, nor did he do so 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 Board or in its decision 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 if true 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 23^rd day of July 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