Giri Anup Kumar and Others v. Torture Claims Appeal Board

HCAL 1437/2018 and
HCAL 1878/2020
(Consolidated)

[2021] HKCFI 3843

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NOS. 1437 OF 2018 AND 1878 OF 2020

(CONSOLIDATED)

(Consolidated pursuant to the Order of

Deputy High Court Judge Bruno Chan dated 22 December 2021)

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 Applicants in open court;

Order by Deputy High Court Judge Bruno Chan:

1.  HCAL 1437/2018 be consolidated with HCAL 1878/2020 and Giri Anup Kumar shall be named as the 1^st Applicant, Gill Simarjit Kaur, the 2^nd Applicant and Giri Piyush Kumar, the 3^rd Applicant; and

2.  Both applications for leave to apply for judicial review be refused.

Observations for the Applicants:

1.The 1^st and 2^nd Applicants (“A1” and “A2”) are nationals of India who arrived in Hong Kong on 2 September 2015 with permission to remain as visitors up to 16 September 2015 when they did not depart and instead overstayed, and on 18 September 2015 they surrendered to the Immigration Department and jointly raised a non-refoulement claim on the basis that if they returned to India they would be harmed or killed by the family of A1’s wife over their extra-marital affair. They were subsequently released on recognizance pending the determination of their claim, and after A2 gave birth to their son, the 3^rd Applicant (“A3”) in Hong Kong on 11 December 2017, A2 also raised a similar claim for him on the same basis.  

2.A1 was born and raised in Village Manuke, Sub-district Jagraon, District Luhiana, Punjab, India. After leaving school he worked as a mechanic and a store worker in Ludhiana, married his wife arranged by his family, and raised a daughter born in 2014.

3.In May 2014 A1 and A2 who was from the same district secretly started an affair, and in April 2015 they went through some form of marriage ceremony in a temple, but later when the wife of A1 discovered the affair and demanded that A1 put an end to it while her parents and family as well as A1’s parents also rebuked him over the affair, but when one day in July 2015 two of A1’s friends who were professional killers informed him that his wife’s parents had hired them to kill him, A1 became fearful for his life and fled with A2 to Delhi, and from there they departed India on 21 August 2015 for Thailand, and then on 2 September 2015 they travelled to Hong Kong where they subsequently overstayed and raised their non-refoulement claim for protection, for which they jointly completed a Non-refoulement Claim Form (“NCF”) on 2 August 2016 and attended screening interview before an immigration officer with legal representation from the Duty Lawyer Service (“DLS”).             

4.By a Notice of Decision dated 6 December 2016 the Director of Immigration (“Director”) rejected their claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of their 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”).

5.In his decision the Director took into account of all the relevant circumstances of their claim and found no substantial grounds for believing that there will be any real and substantial risk of them being harmed or killed by the family of A1’s wife due to the low intensity and frequency of past ill-treatment from them, that there is no real intention of them to kill A1 other than to put pressure on him to end his affair with A2, that there is no reliable evidence that the family of A1’s wife had hired any professional killers to kill him, that in any event in the absence of any official involvement that state or police protection would be available to A1 and A2 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 them as able-bodied adults with working experience to move to other part of India away from their home district in large cities such as Delhi where they had stayed before without incidents and where it would be difficult if not impossible for them to be located.

6.On 13 December 2016 A1 and A2 lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which they attended an oral hearing on 8 March 2018 before the Board during which they both gave evidence and answered questions put to them by the Adjudicator for the Board. On 20 June 2018 their appeal was dismissed by the Board which also confirmed the decision of the Director.

7.In its decision the Board accepted that the families of A1 and his wife disapproved of his relationship with A2 but found no reliable evidence of any intention on their part to harm A1 or A2 or had hired any professional killers to kill them or of any substantial grounds or real chance or real risk that either A1 or A2 will suffer harm amounting to torture, CIDTP, a risk to their lives or persecution upon their return to India from family members or the police or Indian authorities that their claim for non-refoulement protection failed on all applicable grounds.    

8.On 23 July 2018 A1 and A2 filed their Form 86 under HCAL 1437/2018 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in their Form, and in A1’s supporting affirmation of the same date he merely repeated their claim that they cannot go back to their home country as their life would not be safe there but without put forth any proper ground for their intended challenge. As such and in the absence of any error of law or irrationality or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by A1 or A2, I do not find any reasonably arguable basis for their intended challenge.

9.Meanwhile A2 gave birth to A3 on 11 December 2017 in Hong Kong, and on 10 January 2019 she raised a similar non-refoulement claim for him on the same basis as those of hers and A1’s, for which she completed a NCF for A3 on 29 April 2019 and also attended a screening interview together with A1 before another immigration officer.

10.By a Notice of Decision dated 19 June 2019 the Director also rejected A3’s claim on all the applicable grounds upon finding no substantial grounds for believing that the claimed risk of harm from A1’s wife and family upon the return to India is real and foreseeable taking into account of the experience his parents had in the past, that in the absence of any official involvement that state or police protection would be available to A3 upon his return to India, and that COI also shows that reasonable internal relocation would be available for his parents to move with him to other part of India away from their home district without any risk of being located.

11.On 28 June 2019 A1 on behalf of A3 lodged an appeal to the Board against the Director’s decision, and for which both he and A2 attended another hearing on 13 January 2020 before the same Adjudicator for the Board during which they both gave further evidence and answered more questions from the Adjudicator regarding their own situation as well as A3’s claim. On 12 August 2020 A3’s appeal was dismissed by the Board which also confirmed the Director’s decision.

12.In this decision the Board made the same findings as before that although the family of A1 and of his wife did not approve A1’s relationship with A2 that there is no evidence of any real intention to harm them, that it also doubted that A1’s wife under the circumstances had not already divorced him and moved on, that in any event and even on A1’s own admission there is no risk of such harm to A3, and that with the option of internal relocation available for A3 to safely move with his parents to other part of India without any risk of any form that his claim for non-refoulement protection failed on all applicable grounds.      

13.On 21 September 2020 A2 filed a Form 86 under HCAL 1878/2020 for A3 for leave to apply for judicial review of the Board’s decision, but again no ground for seeking relief was given in the Form, and in the supporting affirmation A2 merely stated that she is not satisfied with the decision as A3’s life would be in danger if refouled to India but without putting forth any proper ground for the intended challenge.

14.Given the fact that A3’s claim is primarily based on the claim of his parents A1 and A2 and was dealt with by the same Adjudicator on the facts common to all parties, and in order to save time and costs, I proposed to deal with his leave application also in this decision together with that of A1 and A2, and accordingly made an order consolidating the two applications under Order 53 Rule 12 of the Rules of the High Court, Cap 4A.

15.As noted above, no proper ground for seeking relief has been put forward for A3 by his parents, and similarly in the absence of any error of law or irrationality or procedural unfairness during the process before the Board or in its decision being clearly and properly identified by A1 or A2 for A3, I do not find any reasonably arguable basis for his intended challenge either.

16.I am of course mindful of the fact that A3 being a minor just over 4 years old and not legally represented in these proceedings as required under Order 80 Rule 2 of the Rules of the High Court, it would be necessary to separately consider and examine whether his claim had also been properly considered and determined by the Board in a manner sufficient to meet high standards of fairness in proceedings of this nature, and to see whether there are matters that may support potential minor-specific non-refoulement bases which might not have been properly advanced to the Board due to lack of legal representation in his appeal before the Board, as was held to be the proper approach by the Court of Appeal (Lam VP, Barma and Au JJA) in Fabio Arlyn Timogan v Evan Ruth Esq, Adjudicator of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2020] HKCA 971, and in Re Jasvir Singh & Others [2021] HKCA 53 (Lam VP and Au JA), in that claims of minor children even if based on the same set of primary facts are separate from the claims of their parents and are required to be considered as such having regard to their specific or personal circumstances, and that ill-treatment which may not reach the level of persecution in the case of an adult may do so in the case of a child.

17.As noted in its decision [60], the Board found no fear of A3’s parents of any harm to him from A1’s wife or her family, but rather their concern of the consequences to A3 if harm were caused to his parents in India, of which the Board proceeded to consider and determine, correctly in my view, such issue specific to A3’s circumstances in its decision as follows:

“67. The issue of relocation does not arise because I am not considering the Appellant’s parents claims and the Appellant has not lived in India at any time. However, I consider that any fear his parents may have is localised to their home area. Given the land mass and significant population of India, I consider it reasonable for the Appellant’s parents to move to another part of India. The Appellant’s father had work experience and is relatively well-educated and I am satisfied he is able to live in another part of India with Ms Gill and the Appellant, should they genuinely have any concerns relating to harm in their home area.

 68. Having considered all of the evidence, as noted above I have accepted that both Mr Giri and Ms Gill’s family, as well as Sukhpreet and her family, were angry and disappointed when they discovered that Mr Giri and Ms Gill had an affair and made the decision to leave India and remain in Hong Kong. However, I am not satisfied there is any evidence indicating Sukhpreet’s family or his own family will attempt to harm the Appellant’s parents upon their return to India with the Appellant. Mr Giri’s evidence to the Board indicate he is not fearful for the safety of his son. I have also found they could live in another part of India, and their families would not be aware of their return to India or their whereabouts. I am not satisfied, therefore, that there are substantial or strong grounds or a real chance or a real risk that the Appellant will suffer harm amounting to torture, CIDTP/torture, a risk to his life or persecution in India if he accompanies his parents on their return.”                        

18.On the basis of the case of A3’s parents whom the Board had seen and heard evidence on two separate occasions, I am satisfied that the Board had achieved high standard of fairness in dealing with A3’s claim consistently with the above propositions as noted in Fabio Arlyn Timogan and in Jasvir Singh, and that there is no such underlying matter that may support minor-specific non-refoulement grounds which had not been advanced before the Board.  

19.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.

20.In all three Applicants’ 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 their claims is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of India, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.                

21.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 Applicants’ claim.

22.For these reasons I am not satisfied that there is any prospect of success in the Applicants’ intended applications for judicial review, and I accordingly refuse both their leave applications.

Dated the 22^nd 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