Tamang Amar v. Torture Claims Appeal Board

HCAL 176/2023

[2023] HKCFI 1352

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 176 of 2023

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:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 40-year-old national of India who last arrived in Hong Kong on 1 November 2019 with permission to work as a foreign domestic helper until the expiration of his employment contract or within 14 days of its early termination, but after his employment was prematurely terminated on 21 June 2021 after he was arrested by police for possession and trafficking of dangerous drugs, for which he was subsequently convicted and sentenced to prison for 18 months, during which he raised a non-refoulement claim to the Immigration Department on the basis that if he returned to India he would be harmed or killed by some local supporters of the political party Bharatiya Janata Party (“BJP”) as he supported their rival Communist Party of India (“CPI”).

2.The Applicant was born and raised in Amar Darjeeling, West Bengal, India. After leaving school he worked in various manual labour jobs in his home district, and supported CPI regularly attended their local meetings and rallies, during which he and his fellow CPI supporters would sometime come into violet conflicts with the BJP supporters.

3.One day in about 2019 while the Applicant with his fellow supporters were attending some local activities of CPI, they were attacked by a group of BJP supporters with wooden sticks and other weapons during which the Applicant was struck in the head that he suffered concussion and was taken to the hospital for medical treatments.

4.Upon his discharge form hospital, the Applicant became fearful for his life and fled to Siliguri to take shelter in his friend’s place before moving on to Kolkata where he applied to work as a foreign domestic helper in Hong Kong, and on 1 November 2019 he arrived in Hong Kong for his employment.

5.His employment was however terminated after he was arrested by police on 19 June 2021 for possession and trafficking of dangerous drugs, and for which he was convicted and sentenced to prison for 18 months, during which he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 8 July 2022, and attended screening interviews before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 31 August 2022 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 claim of the Applicant and assessed the level of risk of harm from those local BJP supporters upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that there was no evidence or reasons for them to specifically target the Applicant given that he was just an ordinary CPI supporter with no official post in the party, that in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to 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 1.3 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 India away from his home district in large cities such as New Delhi or Mumbai where it would be difficult if not impossible for those local BJP supporters to locate him.

8.On 9 September 2022 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, for which he attended an oral hearing 25 November 2022 before the Board during which he gave oral evidence and answered questions raised of his claim by the Adjudicator for the Board. On 8 December 2022 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board found the Applicant’s evidence as to his claimed involvement in CPI vague and with little or limited information about the party that it doubted his claimed political involvement, that even if he was indeed a CPI supporter that in the absence of any evidence of having ever held any official post in the party that there is no reason for those BNP supporters to have any adverse interest in him or to specifically target him for harm as alleged, and that in any event in the absence of any official involvement that state/police protection would be available to the Applicant upon his return to India as well as reasonable internal relocation for his to move safely to other part of the country away from his home district without any risk of being located by those BJP supporters that his claim for non-refoulement protection failed on all applicable grounds

10.On 7 February 2023, 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 stated that the decision is unfair and unreasonable but without providing any details or elaboration why it is so, 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.

11.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.

12.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 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.

13.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.

14.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 22^nd 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