Thekkethalakkal Vasudevan Unnikannan v. Torture Claims Appeal Board

HCAL 165/2019

[2022] HKCFI 1223

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 165 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:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 36-year-old national of India who arrived in Hong Kong on 18 November 2014 as a visitor with permission to remain up to 2 December 2014 when he did not depart and instead overstayed, and on 7 January 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 his girlfriend’s family who objected to their relationship. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised as a Hindu in Irinjalakuda, Kerala, India. After leaving school he worked in the construction field, and continued to live with his parents in his home district.

3.In 2013 he started dating a Christian girl from his neighborhood of which they kept as a secret from her family due to their different religions, but one day in October 2014 his girlfriend left her family to move into his home, and shortly thereafter her father with other members of her family came to take her away by force, and before they left, her father warned the Applicant to stay away from his daughter or else he would be killed.        

4.After the incident the Applicant became fearful for his life, and so on 17 November 2014 he departed India for Hong Kong where he overstayed and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 6 April 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

5.By a Notice of Decision dated 20 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”).

6.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 the risk of harm from his girlfriend’s family upon his return to India is real and foreseeable as claimed due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of his girlfriend’s family to seriously harm or kill him other than to stop him from seeing his girlfriend, that in any event it was a private personal 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 where it would be difficult if not impossible for his girlfriend’s family to locate him.

7.On 30 April 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 7 August 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 10 January 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board raised concerns about differences and inconsistencies between the Applicant’s oral evidence given to the Board and the information previously provided to the Director in his NCF which were significant and contradictory, and that his oral evidence given to the Board were also vague, confusing and changing which reflect poorly on his credibility and the reliability of his evidence, and concluded that the Applicant is not a witness of truth and did not accept that he fears of returning to India for the reason he has claimed or for any other reason or that he will be at risk of any harm or face any of the proscribed harm upon his return to India that his claim for non-refoulement protection failed on all the applicable grounds.  

9.On 17 January 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he stated that he is not satisfied with the decision which depended merely on reports from the internet and sources from the Indian authorities instead of the reliable sources relevant to the Applicant’s claim. He did not however provide any further details of how the Board or the decision did so or how the Board erred in its decision, nor did he request any oral hearing for his application.

10.His complaint of the Board relying on reports from unreliable sources is factually incorrect and wholly irrelevant to his intended challenge, given the fact that the Board rejected his claim essentially on its adverse finding against his credibility for what seems to me very thorough and detailed analysis and reasoning as set out in paragraphs 35 – 72 of its decision and with the benefit of hearing the Applicant’s oral evidence and answers to questions raised of his claim at the appeal hearing, 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 these findings of the Board.   

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.Furthermore, the fact is that it has also been correctly 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.

13.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.

14.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 27^th day of April 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