Sunar Sankar v. Torture Claims Appeal Board

HCAL 112/2019

[2022] HKCFI 2237

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 112 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 38-year-old national of India who entered Hong Kong illegally on 27 October 2015 and was arrested by police on the following day. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to he would be discriminated by the general community for being from the lowest caste in India. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in the Sunar caste in Garmanra, Assam, India which he claims to be regarded as backward and as the lowest Hindu caste frequently subjected to discrimination by his fellow villagers of the Hindu community when he was often being looked down upon and abused and not being allowed to participate in various social activities in his home village.

3.After one occasion in 2015 when he was verbally abused and slapped on the face by his fellow villagers, the Applicant felt he could no longer tolerate such discriminations and ill-treatments in India, and so in August 2015 he left his home village for Kolkata, and on 28 August 2015 he departed India for China, and after 2 failed attempts to enter Hong Kong when he was refused entry by the Immigration Department, he later sneaked illegally into Hong Kong, and upon his subsequent arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 27 November 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

4.By a Notice of Decision dated 11 December 2017 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”).

5.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and doubted the credibility of his claim of being discriminated as being of the Sunar caste which according to the relevant Country of Origin Information (“COI”) is in fact a Hindu caste of community of people who work as goldsmiths instead of being the lowest caste subjected to discrimination, a fact of which was conceded by him during his screening interview before an immigration officer when confronted by the relevant COI that it is not accepted that he had been discriminated as such by the general community in the past or that he would face any such risk in future, that in any event such level of risk of harm from his fellow villagers if true in the past that it is assessed as low upon his return to India due to the low intensity and frequency of past ill-treatment from them, that in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective 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 adult with working experience to move to other part of the country away from his home district in large cities such as Mumbai where it would be difficult if not impossible for him to be located by anyone.

6.On 27 December 2017 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 12 November 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 17 December 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

7.In its decision the Board found material inconsistencies, omissions, and implausibility in the Applicant’s evidence that it doubted the credibility of his claims regarding discriminating treatments threats and abuses by his fellow villagers which it considered as fabricated by the Applicant, and which was further undermined and contradicted by the relevant COI that the Sunar caste is not considered as the lowest caste in India or being subjected to discrimination that it is not accepted that he had ever been ill-treated or discriminated as such or that he would face such discrimination upon his return to India that it concluded that his claim for non-refoulement protection failed on all the applicable grounds.  

8.On 11 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 put forward the following grounds for his intended challenge:

(1) That the Board erred in failing to make its own findings on the Applicant’s claim despite the fact that it was a rehearing by just adopting the information and evidence in the hearing bundle without conducting its own research and inquiries on any COI relevant to his claim;

(2) That the Board relied on only one COI which did not form a true basis or reflect on the actual situation in the Applicant’s home country when assessing the risk that he would face in India;

(3) That the Board erred in its decision in dismissing the Applicant’s claim wholly on the basis of credibility rather than on the facts and COI evidence before the Board;

(4) That the Adjudicator failed to take proper account or consideration of the vulnerability of the Applicant’s personal circumstances as a victim of special discrimination or the physical and mental abuses that he had suffered all his life before rejecting his claim; and

(5) That the decision was never read or translated to the Applicant depriving his basic right as a litigant without language assistance thereby hindering his appeal process.  

9.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 Board or the Adjudicator had erred in the decision, or in what way did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or how he was deprived of language assistance in his appeal before the Board when he was clearly assisted by an interpreter during his oral hearing before the Board when he had never raised any such issue or of any language problem. As such and as none of these assertions were elaborated or presented with any particulars or specifics by the Applicant, I do not find any of his proposed grounds reasonably arguable for his intended challenge.

10.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.

11.In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 60 – 63 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of 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.  

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 21^st 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