Saminathan Sasikumar v. Torture Claims Appeal Board

HCAL 2927/2018

[2023] HKCFI 2220

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2927 OF 2018

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 51-year-old national of India who last arrived in Hong Kong on 18 October 2015 as a visitor with permission to remain as such up to 1 November 2015 when he did not depart and instead overstayed, and on 9 November 2015 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 certain local supporters of the political party All India Anna Dravida Munnetra Kazhagam (“AIADMK”) as he supported their rival Dravida Munnetra Kazhagam (“DMK”). He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Telungankudikadu, Orathanadu, India where he assisted his father in farming, got married and raised a family with 3 children, and followed his father’s footstep to support DMK without holding any official position in the party other than cleaning water ponds and other general labour work for the party.

3.During their many years of being DMK supporters, the Applicant and his father had often been approached by the local AIADMK supporters with demand to join their party but the Applicant and his father always refused.

4.After again rejecting the demand of a local AIADMK leader to join the party in 2015, the AIADMK supporters in September 2015 made some false charges against both the Applicant and his father for assaulting their neighbour who happened to be a member of AIADMK that both of them were arrested by the police and were brought before the court and were subsequently released on bail.

5.Upon his release on bail, the local AIADMK supporters continued to make threats against the Applicant who then on advice of his father and wife to leave the country for his own safety, which he did on 18 October 2015 when he departed India for Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 28 February 2018 and attended screening interview before the Immigration Department with legal representation.

6.By a Notice of Decision dated 25 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 those local AIADMK supporters 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 reason for them to specifically target the Applicant for harm given that he was just an ordinary DMK supporter without holding any official post in the party, that in any event in the absence of 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 2.9 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 areas 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 7 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 21 September 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 20 November 2018 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence of threats from the local AIADMK supporters when he changed his account of false charges brought against him were actually due to the personal dispute between his father with their neighbour over the use of the pond water that led to a fight between the 2 of them without involving the Applicant which led to the charge by the police laid against his father that had nothing to do with AIADMK or the Applicant that the Board doubted his claim of fear of harm from those AIADMK supporters that caused him to flee his country to come to Hong Kong, and that in any event his father has all along been residing safely in their home village without any incidents since the Applicant’s departure of the country that it concluded that the Applicant has failed to establish that he would face any real risk of harm of any sort from anyone upon his return to India that his claim for non-refoulement protection failed on all applicable grounds.

10.On 20 December 2018 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 he does not agree with the decision as he cannot go back to his country where his life is in danger but without putting forth any proper ground for his intended challenge, 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 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 Board rejected his claim essentially on its adverse finding on his credibility for the detailed analysis and reasoning set out in paragraphs 20 – 39 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.

13.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 real 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.

14.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.

15.For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and accordingly I refuse his leave application.

Dated the 30^th day of August 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