Ajay Kumar v. Torture Claims Appeal Board and Another

HCAL 185/2019

[2023] HKCFI 950

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 185 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 31-year-old national of India who arrived in Hong Kong on 7 July 2012, but when he was refused entry by the Immigration department, he raised a torture claim on the basis that if he returned to India he would be harmed or killed by 2 brothers and their wealthy and influential family in his home village over their land dispute, and after his torture claim was rejected, he then sought non-refoulement protection on the same basis. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Kot Badal Khan, District Jalandhar, Punjab, India. After leaving school he worked as a salesman in his home village where his grandfather used to own a piece of land which was later inherited by the Applicant’s uncle.

3.As the Applicant’s uncle was single without any children, he treated the Applicant as his own, and in 2011 gifted his land to the Applicant.

4.One day in 2012 two brothers of the wealthy and influential Kumar Family in the village who also owned lands adjacent to the Applicant’s land approached him offering to buy his land, but when the Applicant and his family rejected their offer as being too low, the 2 Kumar brothers made threats against him claiming to have political connections that they could kill him without impunity if he refused to sell his land to them.

5.The Applicant and his father then reported the threats to the local police who were however under the influence of the Kumar Family and instead detained the Applicant and his father in the police station where there were beaten and were warned not to make waive with the Kumar brothers before they were released in the evening.

6.One day in May 2012 the Kumar brothers came with their men to try to occupy the Applicant’s land by force, and when the Applicant and his family tried to stop them, it turned into a mass brawl between the 2 groups, during which the Applicant’s uncle and one of the Kumar brothers Raj were both seriously injured and later died.

7.Fearing of the repercussion, the Applicant fled to a neighbouring village to hide in his aunt’s place, and later when he heard that the Kumar family had sent men looking for him everywhere, he then fled to Delhi and Mumbai, and on 7 July 2012 he departed India for Hong Kong, and when he was refused entry, he then raised his torture claim, and after it was rejected by the Immigration Department, he sought non-refoulement claim protection on the same basis, for which he completed a Supplementary Claim Form (“SCF”) on 26 July 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

8.By a Notice of Decision dated 30 August 2017 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including 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”).

9.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found serious inconsistencies discrepancies and contradictions in his evidence and doubted the credibility of his claim, that even if true that his problem with the Kumar brothers and their family was a private land dispute without any official involvement that state or police protection would be available to the Applicant 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 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 Kolkata or Chennai where it would be difficult if not impossible for anyone to locate him.

10.On 7 September 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 9 October 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 17 January 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

11.In its decision the Board found the Applicant to be a very poor witness with numerous inconsistencies in his evidence and information between those given to the Director and to the Board that it rejected the credibility of his claim of a land dispute with some fellow villagers that led him to leave his country for Hong Kong, and that in any event even if true that it was a private land dispute between him and the Kumar brothers and family without any official involvement that state/police protection would be available to him 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 village without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.

12.On 21 January 2019 the Applicant filed his Form 86 for leave to apply for judicial review of both decisions of the Director and the Board, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date, nor was he able to do so at the hearing of his application. As such and in the absence of any error of law or irrationality or procedural unfairness in his process before the Director or the Board or in their decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

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 Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 28 – 76 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.

15.Furthermore, the fact is that it has also been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim if real 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 19^th day of April 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