Thangavel Selvakumar v. Rture Claims Appeal Board and Another

HCAL 313/2019

[2022] HKCFI 3540

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 313 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 43-year-old national of India who arrived in Hong Kong on 3 June 2016 as a visitor with permission to remain up to 17 June 2016 when he did not depart and instead overstayed, and on 21 June 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 a local member of the political party All India Anna Dravida Munnetra Kazhagam (“AIADMK”) as he supported their rival Pattali Makkal Kachi (“PMK”) and had made a complaint of the candidate bribing voters during a local election. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Thuraiyur Taluk, Trichy District, Tamil Nadu, India. After leaving school with a Bachelor Degree in Mechanical Engineering, he got married and raised a family with 2 children by working as a college professor as well as running a business operating a fitness center in Perambatur, and supported PMK regularly attended their local meetings and rallies.

3.During the 2016 Legislative Assembly Election in the state of Tamil Nadu, the Applicant discovered that a AIADMK candidate made bribes to voters, and filed a complaint to the police who however did not make any charges against the AIADMK member due to lack of evidence.

4.Thereafter the AIADMK candidate hired local gangsters to harass and threaten the Applicant, and on one occasion in April 2016 they beat him with wooden sticks and vandalized his office that he was subsequently dismissed by his employer.

5.The gangsters then turned their harassment to his fitness center business by vandalizing the centre and threatening his customers, and when they started to threaten his wife and children at his home, the Applicant felt it was no longer safe to remain in his home district, and therefore moved his family to stay in his in-laws’ place in Ooty, and on 2 June 2016 he departed India for Hong Kong where he subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 26 March 2018 and attended screening interview before the Immigration Department with legal representation.

6.By a Notice of Decision dated 30 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”).

7.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 local AIADMK leader and his hired gangsters upon his return to India as low 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 or kill the Applicant other than to intimidate him, that it was a private election dispute between the Applicant and the AIADMK candidate 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 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 anyone to locate him.

8.On 8 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 28 December 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 11 January 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence as to his alleged threats from the local AIADMK member and his hired gangsters that it doubted the credibility of his claim of fleeing his home country for Hong Kong to seek protection, that in any event in the absence of any evidence of official involvement that state or police protection would be available to the Applicant upon his return to India that his claim for non-refoulement protection failed on all applicable grounds.

10.On 1 February 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 put forward the following grounds for his intended challenge:

(1)  That the Director and the Adjudicator reached their decisions wrongly in assessing his non-refoulement claim as their decisions were not reasonable or fair as required by the Wednesbury test as his right to life must be protected by the criminal law from extra-judicial killings which the Applicant may face if deported to his home country;

(2)  That the Adjudicator failed to give him sufficient time and chance to arrange relevant evidence for his claim as well as his appeal;

(3)  That the Director failed to appreciate or give proper importance or weight 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 into account of the fact that the Applicant was tortured at the behest of the state law enforcement agencies as well as 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 protect but which the Director failed to consider or give enough weight to such evidence and instead ruled otherwise which is a clear case of unfair attitude which is in itself enough to render the decision void; and

(6)  That the Director failed to attain high standard of fairness in failing to recognize that corruption and incompetency of the administration in the Applicant’s home country is still a very serious problem as various human rights organizations had compiled reports to state testament to the Applicant’s assertions that the decision should be considered unreasonable in the scope of public law.

11.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 applied to his case or how the Director or the Adjudicator had erred in their decisions, or what relevancy were extra-judicial killings or torture by officials to the Applicant’s case when his claimed threats clearly arose from some private election dispute between him and a local AIADMK candidate without any official involvement, or in what way did they fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or how did the Adjudicator fail to give him any opportunity to present his evidence for his appeal before the Board when he was clearly able to present his case to the board without raise any such issue or asking for more time for him to do so. 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.

12.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.

13.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 42 – 61 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.

14.Furthermore, the fact is that it has also been 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 the country, a decision also confirmed by eth 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.

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 30^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