Yadav Ram Avatar v. Torture Claims Appeal Board

HCAL 3685/2019

[2021] HKCFI 3714

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3685 of 2019

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:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 30-year-old national of India who arrived in Hong Kong on 31 August 2015 as a visitor with permission to remain up to 14 September 2015 when he did not depart and instead overstayed, and on 15 September 2015 he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by certain local supporters of the political party Samajwadi Party (“SP”) 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 Godsaiya, Dullahapur, Ghazipur, India.  After leaving school he worked as a dairy farmer, got married and raised a family with three children in his home district.

3.In January 2014 some local SP members approached the Applicant to invite him to join their party and to vote for them in the election, but when the Applicant refused, they became angry and threatened to harm or kill him and his family.

4.One day in March 2014 while he was on his way home from the market, the Applicant was approached by 4 unknown men with demand to join SP, and when he refused, they pulled out their guns and shot him in the legs, and after they left the Applicant was brought by the villagers to the local hospital for medical treatments.

5.After his discharge from the hospital, the Applicant fled from his home district to take shelter in various places of his friends in other towns, and on 27 August 2015 he departed India for China, and from there he travelled to Hong Kong and raised his

6.By a Notice of Decision dated 29 October 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”).

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 ASP supporters upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, 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 SP supporters to locate him.

8.On 7 November 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 28 October 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 5 November 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board found the Applicant’s evidence as to his claim of being sought and harmed by SP supporters in an attempt to force him to join their party vague, unconvincing and unpersuasive in significant aspects, that given that he was just a dairy farmer with no political influences in his home village that there was no reason why those SP people would insist that he joined their party, and that there were such significant discrepancies in various aspects of his claim including those between his NCF made to the Director and his oral evidence before the Board that were indicative of the fact that his accounts had been fabricated that it did not consider him as a credible witness and concluded that his claim for non-refoulement protection failed on all applicable grounds.      

10.On 10 December 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for relief was given in his Form, and in his supporting affirmation of the same date he just repeated his claim as before and stated that the Board reached the wrong decision in assessing his non-refoulement claim without any proper inquiry or understanding of his situation but without any further details or particulars or elaboration how it did so.  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.

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 9 – 55 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 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.The fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim if true 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.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.Furthermore, the Applicant recently on 1 November 2021 filed an affirmation to request to withdraw his application as his problem is finished and that he wants to return to his home country as soon as possible.

16.In the premises, and as I am for the reasons given not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation of his wish to return to his home country, I accede to his request and accordingly dismiss his leave application.

Dated the 9^th day of December 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