Shard Manoj Kumar v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 44/2019

[2023] HKCFI 254

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 44 of 2019

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 9 November 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with his application on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (“the Director”) is the interested party.

The applicant

4.The applicant is a national of India. He entered Hong Kong on 27 December 2015 as a visitor and was permitted to remain until 10 January 2016. He did not depart and had overstayed since 11 January 2016. His application for extension of stayed was refused and he was required to leave on or before 14 January 2016. On 18 January 2016, he surrendered himself to the Immigration Department. On 15 April 2016, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by Sumedh.

5.According to the applicant, he had been a police officer since 1993 and was, at the material time, assigned the duties to combat terrorists, and other gambling and drug-related matters. In 1997, he was instructed by the senior officers to kill two men who were allegedly sons of the terrorists. The applicant only arrested them and turned them in to the police department. He was rewarded by Sumedh for the work. One day, while he was at Sumedh’s villa for a party, Sumedh showed him pictures of the two men’s death. The applicant was shocked as the two men were not convicted terrorists and he felt that it was not right to just kill them. Thereafter, Sumedh left the party with his men. The applicant soon left for home, taking the pictures, together with an envelope containing names and addresses of people who were killed innocently.

6.The next day, the applicant went back to work and found that the vibe was different. He suspected that Sumedh started to cast doubt on him. Later, while the applicant was on duty for a drug case, he found that the police support was delayed, fewer people were arrested and some were released after briberies. Disappointed, the applicant confronted Sumedh who told him that it was none of his business. The applicant did not wish to participate in these corrupt behaviors and decided to resign. Sumedh accepted his resignation but gave him some time to think.

7.A month later, the applicant decided to resume his duty but as a general police officer. Meanwhile, he contacted the newspaper and, in September 1998, decided to hold a press conference to reveal the aforesaid photos. Yet, he was tricked into a villa and Sumedh threatened to kill him if he proceeded to do so.

8.Later, the applicant was drugged by Sumedh’s persistent request for him to smoke. He then decided to escape to Kenya but returned to India in June 1999. In 2001, the applicant resigned again. He also refused Sumedh’s request to join the force again. Nevertheless, he believed that Sumedh forced his business partner to cease cooperation with him. The applicant had no option but to close his business in 2004. Thereafter, his employment was constantly disrupted by Sumedh who kept asking him about the whereabouts of the photographs. Later, in an incident, the applicant overheard from a former colleague and some unknown policemen that they wanted to kill him. He successfully escaped from the attempted shooting. Out of fear, the applicant eventually fled to Hong Kong for protection. Details of his claim are set out at paragraph 9 of the Notice of Decision dated 7 September 2017 by the Director (the “Director’s Decision”).

The Director’s Decision

9.The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

10.By way of the Director’s Decision, the Director dismissed the applicant’s claim as the level of risk of harm upon refoulement was assessed to be low. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [15]; (ii) his behaviors indicated that the risk of harm was not imminent [16]; (iii) his problem with Sumedh was a private one without state involvement [17]; (iv) state protection would be available to him [18]-[20]; and (v) internal relocation was a viable alternative [21]-[22].

The Board’s Decision

11.The applicant appealed the Director’s Decision to the Board. On 17 July 2018, the Board conducted an oral hearing for his appeal, during which he gave oral evidence.

12.The Board recapped the applicant’s personal background and his claim [17]. It also considered the documents submitted by the applicant [18]-[22]. It noticed that the applicant had little knowledge about Sumedh’s position and his explanation contradicted the country of origin information (“COI”) [30]. The COI also showed that Sumedh was retiring from the police force in 2018. Yet, the applicant claimed that the implication of the photos extended beyond Sumedh but to the whole Indian government [31]. While the applicant claimed that he kept the photos at home, there was no indication that Sumedh or other police officers had attempted to search his house if they had pursued the applicant for the photos as relentlessly as claimed [33].

13.Insofar as the details of the photographs were concerned, the Board found that the applicant’s evidence on the relevant aspects, such as the details of the photos, how these photos could implicate Sumedh, his claimed involvement of the two men who were later killed; how he was left with such sensitive photos by a senior officer as high-ranked as Sumedh, was unconvincing [34]-[43]. Equally unconvincing was the applicant’s evidence on his undercover duty in the drug case [44]-[48]. Meanwhile, the Board also cast doubt on his evidence as to the alleged monitoring of his employments and the alleged kidnap by former colleagues and some unknown policemen [50]-[51].

14.In light of the aforesaid findings, the Board refused to accept that, inter alia, the applicant had involved in the arrest of the two sons of the terrorists; that he came to know that the sons were killed; that he had seen the photos or the said envelope; or that he was monitored or kidnapped by the police officers [53]. As a result, the Board rejected the applicant’s claim and dismissed his appeal.

Application for leave to apply for judicial review of the Board’s Decision

15.The applicant has filed Form 86 dated 7 January 2019 for leave to apply for judicial review of the Board’s Decision.

16.In his affirmation in support of his application, the applicant did not set out any specific ground.

DISCUSSION

17.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

18.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

19.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

20.The Board had rejected the applicant’s evidence on the facts of his case. There is no valid reason to challenge the Board’s Decision.

21.The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

22.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

23.I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

Dated the 13^th day of February 2023

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