Sahil Kumar v. Torture Claims Appeal Board

HCAL 2320/2019

[2023] HKCFI 1101

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 2320 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 / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 34-year-old national of India who arrived in Hong Kong on 17 September 2015 but when he was refused entry by the Immigration Department, he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his girlfriend’s father and brother who were the local leaders of the political party Bharatiya Janata Party (“BJP”) for refusing to join their party and for maintaining his relationship with his girlfriend despite her family’s objection. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Akhnoor, Tehsil-Jammu, India. After leaving school he worked in a motor repairing shop in his home village, supported the political party Indian National Congress Party (“NCP”) regularly attended their local meetings and rallies without holding any official post in the party, and in 2014 started dating his girlfriend but kept their relationship from her father Karan who was the local BJP leader and the head of the village council.

3.One day in October 2014 while he was putting up NCP’s posters in the village, the Applicant was approached by his girlfriend’s father Karan to join BJP, but when he refused, Karan became furious and warned that he would face serious consequences.

4.Some weeks later one evening while he was on his way home from work, the Applicant was stopped by his girlfriend’s brother Munna and his followers who proceeded to attack him by punching and kicking him all over his body until they were stopped by the other villagers.

5.Another day in April 2015 when the Applicant was having meals with his girlfriend in a restaurant, they were seen by her brother Munna who then warned the Applicant to put an end to the relationship or else he would be killed.

6.A few days later the Applicant was ambushed and attacked by Munna and his followers in the market but managed to make his escape without serious injuries.

7.After another attack by Munna and his followers with knives on the street, and while he again managed  to flee from the scene unharmed, the Applicant became fearful for his life and fled to Delhi in May 2015 to take shelter in a friend’s home, but later when he saw Munna and his followers on the street in Delhi, he felt it was no longer safe to remain in India, and so on 15 September 2015 he departed for Hong Kong, and when he was refused entry by the Immigration Department, he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 30 October 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

8.By a Notice of Decision dated 20 November 2015 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“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 assessed the level of risk of harm from his girlfriend’s father and brother 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 or political reason for them to specifically target him for harm given the fact that he was just an ordinary NCP supporter without holding any official post in the party, while his problem with them over his relationship with his girlfriend was a private personal dispute 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.

10.On 7 December 2015 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 February 2016 before the Board during which he gave oral evidence and answered questions raised of his claim by the Adjudicator for the Board. On 7 March 2016 his appeal was dismissed by the Board which also confirmed the Director’s decision.

11.In its decision the Board found inconsistencies and contradictions in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from his girlfriend’s family that caused him to leave his country to seek protection in Hong Kong, and that in any event if such risk is real that it only arose from a private personal dispute without any 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.

12.Meanwhile on 2 February 2017 the Director on his own initiative invited the Applicant to submit any additional facts which he may consider relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection, including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk”), and in the absence of any such additional facts from him, the Director by a Notice of Further Decision dated 22 February 2017 also rejected the Applicant’s BOR 2 Claim upon finding that he failed to establish any personal or real risk of his absolute and non-derogable rights under the HKBOR including right to life under BOR 2 being violated upon his return to India.

13.The Applicant again lodged an appeal to the Board against the Further Decision of the Director, and for which he attended another oral hearing on 9 July 2019 before the Board during which he gave further evidence and answered questions raised of his BOR 2 Claim by the same Adjudicator for the Board. On 1 August 2019 his appeal was again dismissed by the Board which also confirmed the Further Decision of the Director.

14.In this decision the Board found as in its earlier decision that in the absence of any state or official involvement in the Applicant’s claim that there was simply no evidence that he will be at risk of harm from capital punishment inflicted by the Indian government or face any harm from the government that would place his life at risk that it concluded that his claim for non-refoulement protection also failed on the BOR 2 ground.

15.On 12 August 2019 the Applicant filed his Form 86 for leave to apply for judicial review of this second decision of the Board, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date in which he just stated that he is not satisfied with the decision but without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for his application. 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.

16.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.

17.In the Applicant’s case, the Board already in its earlier decision rejected his claim under all other applicable grounds on its adverse finding on his credibility for the reasons set out in that decision, and with the benefit of hearing him not once but twice in his oral evidence and his answers to questions raised of his claim under all the applicable grounds, in the absence of any error of law or procedural unfairness in his process before the Board or in its either decisions being clearly and properly identified by the Applicant, and on the factual basis even of his own case that his claim simply does not engage the limited scope of the BOR 2 ground, I do not find any reasonably arguable basis to challenge the finding of the Board.

18.The fact is that it has also been established by the Director in his earlier 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.

19.In the premises and having considered both decisions of 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 on all the applicable grounds including BOR 2 Risk.

20.Furthermore, the Applicant recently filed an affirmation requesting to withdraw his application as all his problems have now been resolved that he just wants to return to his home country.  

21.In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation that he no longer has any problem returning to his home country, I accordingly dismiss his leave application.

Dated the 3^rd day of May 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