Tarun Kumar v. Torture Claims Appeal Board and Another

HCAL 2664/2018

[2021] HKCFI 2356

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2664 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 (counsel for) the Applicant in open court / the Applicant being absent 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 28-year-old national of India who arrived in Hong Kong on 20 March 2013 with permission to remain as a visitor up to 3 April 2013 when he did not depart and instead overstayed, and was arrested by police on 17 April 2013. 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 creditor for failing to repay his loan. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Rama Mandi, District Jalandhar, Punjab, India, and later moved with his family to Mohalla Bagh Wala, Shahkot, Jalandhar where he worked as a mechanic in a motor repairing shop after leaving school.

3.In 2012 he started his own business repairing motor bikes by borrowing a loan from a former customer repayable within 6 months with monthly interest payments.

4.Initially the Applicant was able to make his monthly interest payments for his loan from his business income which however deteriorated over time, and by April 2012 he was having difficulty making his loan repayments, and when his creditor started to threaten him over his default, and after two incidents in June and July of 2012 when he was beaten by his creditor and followers with wooden sticks that he sustained injuries, the Applicant fled to Rama Mandi to hide in his grandparents’ place for 2 months before returning to his home village.

5.However, shortly thereafter he was abducted by his creditor and his men to a place where he was blindfolded and beaten with wooden sticks all over his body that he lost consciousness, only to wake up later to find he had been abandoned in a remote place outside of Shahkot, and from there he made his way to his grandparents’ place to seek medical treatments.      

6.After the last incident, the Applicant felt it was no longer safe to remain in India, and so on 16 March 2013 he departed for Thailand, and from there he travelled to Hong Kong where he subsequently overstayed, and upon his eventual arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 19 December 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

7.By a Notice of Decision dated 9 January 2018 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”).

8.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 his creditor and his followers upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that it was a private monetary 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 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 young man 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 creditor to locate him.

9.On 22 January 2018 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 12 September 2018 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 5 November 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.In its decision the Board found a number of significant inconsistencies and contradictions between the claims made in the Applicant’s evidence to the Director and in his appeal hearing before the Board that were so fundamental to his circumstances and the core of his claim that it considered that he had not told the truth and rejected his claim of having borrowed a loan when he was then merely 19 years old or that he failed to repay it or that he had been threatened or ill-treated by his creditor or that he is at risk of harm for the reasons claimed or from anyone upon his return to India that his claim for non-refoulement protection failed on all applicable grounds.  

11.On 23 November 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and put forward the following grounds for his intended challenge:

(1)  that the Director and the Adjudicator reached their decisions wrongly in assessing the Applicant’s non-refoulement claim as unfair and unreasonable in failing to give him sufficient time and chance to arrange relevant evidence for his claim as well as his appeal;

(2)  that there was an unfair attitude shown by the Director which is in itself enough to render his decision void as he failed to recognize the fact that corruption and incompetency of the administration of the Applicant’s home country is still a very serious problem as various human rights organizations have complied reports which stated testament with the Applicant’s assertion; and

(3)  that the Director failed to attain the high standard of fairness required by the Wednesbury test in the decision with the arguments put forward by the Applicant.  

12.These are however all just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the Adjudicator had erred in their decisions, or in what way did they reach their decisions wrongly or unfairly or to apply high standards of fairness in assessing his claim or appeal, while his complaint of not being given sufficient time and opportunity to provide evidence in support of his claim or appeal is plainly and factually incorrect as he was legally represented by DLS in his process before the Director and during his screening interviews before an immigration officer, while he was also able to present his case and submissions fully and properly with the assistance of an interpreter during his appeal hearing before the Board when he never raised any issue of insufficient time or opportunity to provide further evidence in support of his claim, and that even now in the present application that he has not provided any further evidence despite indicating his intention to do so at the time of the filing of his Form 86 or to seek further time to enable him to do so. As such I do not find any of these grounds of the Applicant reasonably arguable for his intended challenge.

13.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 PushpaKumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

14.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 55 – 69 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.

15.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.     

16.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.

17.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 12^th day of August 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