ajay Kumar v. Torture Claims Appeal Board

HCAL 325/2020

[2022] HKCFI 1779

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 325 of 2020

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 27-year-old national of India who entered Hong Kong illegally on 18 September 2015 and surrendered to the Immigration Department on 20 October 2015 when he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by a local loan shark over his outstanding debts. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in a village in Punjab, India. After leaving school he borrowed a loan from a loan shark in his home village in early 2015 to form his mobile phone and accessories business, with interest payable every month until the discharge of his loan.

3.Initially the Applicant was able to make the monthly loan interest payments from his business profits, but by mid-2015 his business fared badly that he started to default with his loan repayments, and after being threatened and beaten badly by men sent by the loan shark, he was advised by his parents to leave the country to save his life, and so one day in July 2015 he departed for 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 30 July 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

4.By a Notice of Decision dated 21 September 2018 the Director of Immigration (“the 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”).

5.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 the loan shark and followers upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that it was a private monetary 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 3.2 million square kilometers that it would not be unduly harsh for the Applicant as an able-bodied young adult with working experience to move to other part of India away from his home district in large cities such as Mumbai where it would be difficult if not impossible for the loan shark to locate him.

6.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, but for which he failed to attend the scheduled hearing on 15 November 2019 without any explanation, and in the absence of any request from him for another oral hearing, the Board proceeded to deal with his appeal in his absence and on paper, and on 29 November 2019 it dismissed his appeal and confirmed the Director’s decision.

7.In its decision the Board found inconsistencies, gaps and discrepancies in the materials previously provided by the Applicant to the Director and in the hearing bundle before the Board but which the Applicant failed to clarify or explain due to his failure to attend his oral hearing before the Board that it doubted the credibility of his claim, and that in any event if true that it was a private monetary dispute between them 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 away from his home district without any risk of being located by the loan shark that his claim for non-refoulement protection failed on all applicable grounds.      

8.On 6 March 2020 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forth the following grounds for his intended challenge:

(1) that the Director and the Adjudicator reached their decisions wrongly in assessing the Applicant’s non-refoulement claim that the decisions 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 that the Applicant may face if deported back to his home country;

(2) that the Director failed to appreciate or give proper weight to the presence of state acquiescence that the Applicant was tortured at the behest of the state law enforcement agencies and politicians that the state should 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 unreasonable and was procedurally unfair by placing too much reliance on COI but failed to take the Applicant’s personal background and experience into account;

(4) that the Director failed to consider or give enough weight to those listed COI which supported the Applicant’s aversions that the police in his home country would not be able to protect;

(5) that the Director failed to take into account of the corruption and incompetency of the administration in the Applicant’s home country is still a very serious problem as various human rights organizations have complied reports on such matters that stated testament to the Applicant’s assertions and was therefore a clear case of unfair attitude shown by the Director which is in itself enough to render the decision void;

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

(7) the Adjudicator was procedurally unfair and improper when assessing the explanations provided by the Applicant by unreasonably requiring him to respond to questions that he was not in a position to offer any response;

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

(9) that the Adjudicator made a ruling to dismiss the Applicant’s appeal based on findings which ought to have allowed the appeal and that the decision was therefore irrational.  

9.By then the Applicant was however out of time with his application, as Order 53 rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.  

10.As the last day of the three-month period for him to file his Form 86 fell on 28 February 2020, the Applicant was therefore about 6 days late with his application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393. 3454

11.In the Applicant’s case, a delay of 6 days may not be considered as significant, for which he did not provide any explanation in his Form or affirmation, while the record shows that the decision was sent on the same day to his last reported address without being returned through undelivered post, but given the relatively insignificance of the short delay, I propose to focus on the merits, if any, of his intended application.

12.However, his complaints as listed above are 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 apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way would state acquiescence or extra-judicial killings be relevant to his claim which even on the basis of his own case was a private monetary dispute between him and his creditor without any official involvement, or how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI or act procedurally unfair or to apply high standards of fairness in assessing his claim or appeal. 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 rightly established by both the Director and the Board in their respective decision 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 9 March 2022 wrote to request to withdraw his application as he wants to return 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 in the absence of any good reason for his delay as well as his latest confirmation of his wish to return to his home country, I accordingly dismiss the Applicant’s leave application.

Dated the 14^th day of June 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