Duseja Mukesh Parmanand v. Torture Claims Appeal Board

HCAL 50/2021

[2022] HKCFI 3278

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 50 of 2021

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 the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

1.   the application for leave to apply for Judicial Review be reinstated; and

2.   leave to apply for judicial review be refused.

Observations for the Applicant:

1.The Applicant is a 40-year-old national of India who arrived in Hong Kong on 6 November 2016 as a visitor with permission to remain up to 20 November 2016 when he did not depart and instead overstayed, and on 23 November 2016 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 eldest brother’s creditor who held him to be responsible for his brother’s debts after his brother had passed away. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Nashik, Maharstra, India. After leaving university with a Bachelor degree, he got married and raised a family with a son, and worked in his eldest brother’s company.

3.In 2015 his eldest brother passed away leaving many outstanding debts, and for which the Applicant took up the responsibility of paying off with the company’s remaining capital, but when they were soon exhausted, one particular creditor who claimed to have connections with the local politicians and gangsters demanded that the Applicant should sell his own land and property to repay the remaining debts, and threatened to kill him and his family if he refused to do so.

4.As a result the Applicant became fearful for his safety and that of his family, and after arranging for his wife and son to stay with her parents in Solapur, he then fled to Pune, and on 4 November he departed India for Macau, and from there he travelled to 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 10 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 2 May 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 there will be any real risk of him being harmed or killed by his brother’s creditor upon his return to India due to the low intensity and frequency of past ill-treatment from his brother’s creditor, that there is no evidence of any real intention of the creditor to seriously harm or kill him, that in any event 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 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 or Mumbai where it would be difficult if not impossible for his brother’s creditor to locate him.

7.On 14 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 18 November 2020 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 4 January 2021 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board found the Applicant evasive, shifty and inconsistent in his evidence that it doubted the credibility of his claim of fear of harm from his brother’s creditor that caused him to flee his home country for Hong Kong, and that in any event his problem with his brother’s creditor if true is a private monetary dispute between the 2 of 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 the applicable grounds.

9.On 12 January 2021 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date in which he just repeated his claim as before without putting forward any proper ground for his intended challenge.

10.However, before his application could be listed for hearing, the Applicant filed an affirmation on 5 January 2022 requesting to withdraw his application as his family in India was trying to resolve his dispute with his brother’s creditor, and on 14 January 2022 Deputy High Court Judge P. Li made an order allowing him to do so.

11.Some 7 months later on 23 August 2022 the Applicant filed a summons with written submissions to request that his leave application be re-instated for hearing as he had earlier been “misguided” into believing that his problem in his home country had been resolved and that it would be safe for him to return to India, but in fact it was a trick by his enemy to get him to return to India.

12.Given the fact that the merits of his leave application had never been determined by the Court and his claim of having been misled into earlier withdrawing his application, I gave him the benefit of doubt and directed that his application be re-instated for hearing.

13.However, the Applicant failed to attend the scheduled hearing of his application without any explanation, nor has he as noted above put forth any proper ground for his intended challenge. As such 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 for his intended challenge.

14.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.

15.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.

16.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.

17.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 16^th day of December 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