Roy Sangya v. Torture Claims Appeal Board

HCAL 2614/2018

[2022] HKCFI 108

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2614 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 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 52-year-old national of India who arrived in Hong Kong on 12 September 2009 as a visitor with permission to remain up to 26 September 2009 when he did not depart and instead overstayed, and was arrested by police on 6 October 2009. After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his wife’s family over his religious faith. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised as a Christian in West Bengal, India. After leaving school he worked in the restaurant service in New Delhi, and in 1998 married his Hindu wife and raised a family with 2 children.

3.However, in about 2004 when he started to introduce his children to his Christian faith by bringing them to church, his wife’s family raised objections and insisted that they should follow Hinduism which led to many conflicts and disputes between the two families, and when his wife’s uncle and brother in 2006 demanded that the Applicant himself should also convert to Hinduism, and when he refused, they attacked the Applicant by punching and kicking him until his wife and other people intervened.

4.About 2 weeks later while the Applicant was on his way home from work, he was confronted by his wife’s brother and other members of her family who proceeded to beat him again that he fell onto the ground and lost consciousness, and was eventually brought to the hospital for treatment to his head injury.     

5.After his subsequent discharge form hospital, the Applicant moved to Delhi to avoid his wife’s family where he found a job and stayed for more than 2 years without incidents, but after receiving a phone call from his wife in August 2009 who indicated that her uncle planned to murder him at night, he felt it was no longer safe to remain in India, and so on 11 September 2009 he departed for Hong Kong where he subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 28 October 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).       

6.By a Notice of Decision dated 6 February 2015 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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 his wife’s family upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of his wife’s family to seriously harm him other than to put pressure on him to convert to Hinduism, that in any event it was a private family 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 2.9 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 he had stayed before without incidents and where it would be difficult if not impossible for his wife’s family to locate him.

8.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 18 December 2015 before the Board during which he gave oral evidence and answered questions raised of his claim by the Adjudicator for the Board. On 10 March 2017 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board found total absence of any biblical knowledge from the Applicant in his evidence that it doubted the credibility of his alleged Christian faith and his claimed fear of harm from his wife’s family that caused him to leave his country, but found in any event that it was a private family dispute between him and his in-laws without any official involvement that state/police protection would be available to him upon his return to India as well as reasonable internal relocation for him to move safely to other areas away from his home district without any risk of being located that his claim for non-refouelment protection failed on all applicable grounds. 

10.Meanwhile on 7 April 2017 the Director on his own initiative in writing invited the Applicant to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk”), and in the absence of any response from him, the Director by a Notice of Further Decision dated 24 April 2017 rejected the Applicant’s BOR 2 claim upon finding that he had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR including right to life under BOR 2 being violated upon his return to India.

11.On 8 May 2017 the Applicant again lodged an appeal to the Board against this further decision of the Director, and for which the Board did not find necessary to hold another oral hearing for his appeal, and proceeded to deal with it in his absence and on papers, and on 15 November 2018 it dismissed his appeal upon finding no further or additional information from the Applicant for his BOR 2 claim other than a regurgitation of his claim as before, and that its previous findings as to the availability of state/police protection and reasonable internal relocation still stand in the Applicant’s case that it concluded that his claim for non-refoulement protection also failed under the BOR 2 ground. 

12.On 20 November 2018 the Applicant filed his Form 86 for leave to apply for judicial review of this second decision of the Board, but no ground for seeking relief was given in his Form, and in his supporting affidavit of the same date he just stated that he rejects the decision as the Board disregarded his dangerous situation but without providing any details or particulars or elaboration how it did so, nor was he able to put forth any proper ground for his intended challenge at the hearing of his application.

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 Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

14.In the Applicant’s case, the Board rejected his claim under BOR 2 in its second decision as well as all other applicable grounds in its earlier decision essentially on its correct finding that his problem with his wife’s family over his religious belief was just a private family dispute that simply would not engage the BOR 2 ground, and that any claimed risk of harm from his wife’s family would be negated or avoided by state/police protection and internal relocation within his home country for the thorough and detailed analysis and reasoning set out in paragraphs 30 – 34 of its second decision with the benefit of hearing him in his oral evidence given in his earlier appeal hearing against the Director’s first decision and his answers to questions raised of his claim, and in the absence of any additional evidence or information from him in support of his BOR 2 claim or 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. 

15.Furthermore, the fact is that it has been established by both the Director and the Board in their respective decisions 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, 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 7^th day of January 2022

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