Ajay Kumar v. Torture Claims Appeal Board and Another

HCAL 329/2020

[2022] HKCFI 403

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 329 of 2020

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 32-year-old national of India who entered Hong Kong illegally on 29 July 2016 and surrendered to the Immigration Department on 5 August 2016 when he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed over a dispute between his family and the registered landowner arising from the purchase of a piece of land in his home district.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in District Gurdaspur, India.  After leaving school he worked in his catering business and resided with his family in his home village.

3.In 2009 his elder brother purchased a piece of land in the home village but discovered that it had been registered under the name of a local woman by the name of Mummta of which his brother suspected was done illegally, and when his brother raised issue about the matter, Mummta threatened his brother and his family not to mess with her as she was well connected with the local politicians that there would be serious consequences.

4.One day in the end of 2009, Mummta sent her men to evict the Applicant’s family from the disputed land, and when they refused, those men attacked the Applicant, his father and his brother with wooden sticks that they suffered injuries which required medical treatments at the local hospital.

5.After the assault the Applicant’s family filed a complaint to the police against Mummta who then failed counter-charges against them, and to avoid being implicated by these disputes, the Applicant in August 2014 left India for Singapore and Thailand, and in July 2016 he went to China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 20 March 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).   

6.While released on recognizance pending the determination of his claim, the Applicant was arrested by police again on 5 separate occasions between 2016 and 2017 for the offences of theft and obtaining property by deception for which he was convicted and sentenced to prisons for various terms totaling more than 5 months.            

7.By a Notice of Decision dated 16 April 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 found no substantial grounds for believing that there will be any real and substantial risk of him being harmed or killed by Mummta or her associates upon his return to India over a private land dispute between his family and Mummta in which he had had no interest at all and 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 it would be difficult if not impossible for Mummta or her associates to locate him.

9.On 7 May 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 5 December 2019 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 16 January 2020 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.In its decision the Board found inconsistencies, discrepancies and implausibility in the Applicant’s evidence as to his claim of land dispute between his family and Mummta which caused him to leave his home country for Hong Kong that it doubted the credibility of his claim, and that in any event it was a private land dispute between his family and Mummta without any official involvement that state/police protection would be available to the Applicant upon his return to India as well as reasonable internal relocation for him to move safely to other area of the country without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.     

11.On 6 March 2020 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 forth the following grounds for his intended challenge:

(1) that the Director and the Adjudicator reached their decisions wrongly in assessing his non-refoulement claim which were not fair or reasonable as required by the Wednesbury test as the right to life must be protected by criminal law from extra-judicial killings which the Applicant may face if deported back to his home country;

(2) that the Director failed to appreciate or give proper importance or weight to the presence of state acquiescence in the Applicant’s case which led to an unfair outcome of rejecting his non-refoulement claim as he was tortured at the behest of the state law enforcement agencies as well as those in the political circles that the state would be rendered liable to the Applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(3) that the Adjudicator acted unreasonably and was procedurally unfair by placing too much reliance on COI and failed to take into account of the Applicant’s personal background and experience in assessing his claim;

(4) that the Director failed to take account of the listed relevant COI which supported the aversions that the police in the Applicant’s home country would not be able to protect as the corruption and incompetency of the administration in his home country is still a very serious problem which various human rights organizations have compiled reports which stated testament to the Applicant’s assertions which is a clear case of unfair attitude shown by the Director which in itself is enough to render his decision void;

(5) that the Director failed to attain high standard of fairness required by the Wednesbury test in the decision which should be considered unreasonable in the scope of public law;

(6) that the Adjudicator was procedurally improper and/or unfair when assessing whether to accept explanations provided by the Applicant and unreasonably required him to response to questions that he was not in a position to offer any response;

(7) that the Adjudicator failed to take into account the nexus of political parties and official’s corruption which exist in the Applicant’s home country making persecution effectively persecution by the state;and

(8) that the Adjudicator made a ruling to dismiss the Applicant’s appeal based on findings which the Adjudicator ought to allow the appeal and the decision was thus irrational.  

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 the decisions, or how did they fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or in what way would the concept of state acquiescence or extra-judicial killings or state corruption or torture be relevant to his case which even on his own case at the highest that it was a private land dispute between his family and Mummta without any official or political involvement or any element of torture or ill-treatment or persecution. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them 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 Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

14.In the Applicant’s case, 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 his 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.                

15.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.

16.Furthermore, the Applicant recently on 11 January 2022 wrote to the Court requesting to “close” his application for judicial review as he wants to go back to his home country.

17.In the premises, 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 taking into account of his latest confirmation of his wish to leave Hong Kong to return to his home country, I refuse to grant leave and accordingly dismiss his application.

Dated the 8^th day of February 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