Raman Kumar v. Torture Claims Appeal Board and Another

HCAL 1608/2019

[2022] HKCFI 2160

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1608 of 2019

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 37-year-old national of India who entered Hong Kong illegally on 21 November 2014 and was arrested by police on 27 November 2014. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his paternal uncle and sons over a land dispute in his home district. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Bawyal, Ambala, Haryana, India where his father and his 2 uncles inherited their farmland in the village from his grandfather, and upon the death of his father in 2006, the Applicant inherited his father’s farmland upon which he worked as a farmer after completing his education.    

3.One of his uncles Kalyan and his sons however coveted the Applicant’s land and would frequently use various excuses to harass and intimidate him, such as dispute over his use of the common water supply for the farmland for which he was assaulted by his uncle’s sons on a few occasions.

4.To avoid such threats and harassments, the Applicant in 2009 leased out his farmland to his neighbor and moved to Chandigarh to take shelter in his maternal aunt’s place to stay away from his uncle and sons, returning only quietly and occasionally to visit his mother in his home village.

5.On one such occasion in January 2014 when he was visiting his mother in his home village, he was spotted by his uncle who then came with his sons and fired their guns outside the Applicant’s home, and after they left the Applicant fled back to Chandigarh, and on 9 November 2014 he departed India for Thailand and then China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 6 February 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.While being released on recognizance pending the determination of his claim, the Applicant had been arrested by police on numerous occasions for the offences of theft, burglary and handling stolen goods for which he was all convicted and sent to prison for total terms of more than 33 months.               

7.By a Notice of Decision dated 2 March 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 risk of him being harmed or killed by his uncle and sons upon his return to India due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm the Applicant over essentially some private land dispute between them without any official involvement that state or police protection would be available to the Applicant if resorted to upon his return to India, 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 the country away from his home district in large cities such as Delhi where it would be difficult if not impossible for his uncle and sons to locate him.

9.On 14 December 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 15 April 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 5 June 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.In its decision the Board found significant inconsistencies and discrepancies in the Applicant’s evidence between those previously given to the Director and those at his appeal hearing before the Board that it doubted the credibility of his claim of fear of harm from his uncle over their land dispute that caused him to flee from his home country for Hong Kong, and 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 upon his return to India as well as reasonable internal relocation for him to move safely to other part of the country away from his home district without any risk of being located by anyone that his claim for non-refoulement protection failed on all applicable grounds.  

11.On 13 June 2019 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in his supporting affirmation of the same date he put forward 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 their decisions were not reasonable or fair as required by the Wednesbury test that his right to life must be protected by the criminal law from extra-judicial killings that he may face if he is deported to his home country;

(2) That the Adjudicator failed to give the Applicant sufficient time or chance to arrange relevant evidence for his non-refoulement claim or appeal;

(3) That the Director failed to appreciate or give proper weight and importance to the presence of state acquiescence in the Applicant’s case which led to an unfair outcome of rejecting his non-refoulement claim;

(4) That the Director failed to take account of the fact that the Applicant was tortured at the behest of the state law enforcement agencies and the politicians 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;

(5) That the Director had listed relevant COI which supported the Applicant’s aversions that the police in his home country would not be able to pro6ect but failed to consider or give enough weight to such evidence and instead ruled otherwise against the Applicant which is a clear case of unfair attitude shown by the Director which is in itself enough to render his decision void; and

(6) That the Director failed to attain high standard of fairness required by the Wednesbury test in failing to recognize that the corruption and incompetency of the administration in the Applicant’s home country is a very serious problem as reported by various human rights organizations which stated testament to the Applicant’s assertions that the Director’s decision should be considered unreasonable in the scope of public law.  

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 apply to his case or how the Director or the Adjudicator had erred in their decisions, or in what way were their decisions unfair or unreasonable as required by the Wednesbury test, or what relevancy were state acquiescence or torture by the state or extra-judicial killings to the Applicant’s claim when the factual basis of his own case at the highest was a private land dispute between him and his uncle’s family without any official involvement, or how did the Adjudicator fail to give him sufficient time or opportunity to provide his evidence for his claim or appeal when he never raised such issue during his appeal hearing before the Board, or how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on the irrelevant COI. 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, nor do I find any reasonably arguable basis for his intended application 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.

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 decision that the risk of harm in his claim if true 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.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.

16.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 15^th day of July 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