Himank v. Torture Claims Appeal Board

HCAL 3088/2019

[2023] HKCFI 2221

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3088 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 30-year-old national of India who last arrived in Hong Kong on 5 November 2015, and 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 uncle over some dispute within their family. 

2.The Applicant was born and raised in Amristar, Punjab, India. After leaving school he was sent by his parents to Ambala Cantt, Haryana to work as the apprentice to a gold smith.

3.In early 2015 he returned home to help out in his father’s garment shop inherited from his grandfather, but which was coveted by his uncle who often raised issues with his father over the ownership of the garment shop.

4.One day in March 2015 his uncle and son again came to the shop to raise issues over its ownership with his father which deteriorated into a heated quarrel between them which then broke into a fight joined by the Applicant and his uncle’s son, during which both his father and his uncle’s son were injured and were taken to the local hospital for medical treatments.

5.After the incident his uncle accused the Applicant of causing serious injuries to his son during the fight and swore to kill him in revenge, and one day his uncle came with his men armed with hockey sticks to the Applicant’s home looking to kill him, but the Applicant managed to make his escape and fled to Ambala Cantt, but later when he heard that his uncle and his men were coming to kill him, the Applicant felt it was no longer safe to remain in India, and so he departed the country for Macau, and when he later arrived in Hong Kong on 5 November 2015 but was refused entry, he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 31 December 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

6.By a Notice of Decision dated 22 January 2016 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”).

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 his uncle upon his return to India as low due to the low intensity and frequency of past ill-treatment from him, that in any event it was a private inheritance or property dispute within their family 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 areas of the country away from his home district in large cities such as Mumbai where it would be difficult if not impossible for his uncle to locate him.

8.The Applicant did not lodge any appeal to the Torture Claims Appeal Board (“Board”) against this decision of the Director, and meanwhile on 7 November 2016 the Director on his own initiative invited the Applicant to submit any additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute and non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”), and in the absence of any response from him, the Director by a Notice of Further Decision dated 7 February 2017 also rejected the Applicant’s BOR 2 Claim upon finding that he had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR including right to life under BOR 2 Risk being violated upon his return to India.

9.On 23 May 2017 the Applicant lodged an appeal to the Board against this Further Decision of the Director, and although it was filed outside the 14-days period as required under Section 37ZS (1) of the Immigration Ordinance, its late filing was accepted by the Board, and for his appeal the Applicant attended an oral hearing on 16 May 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 6 September 2019 his appeal was dismissed by the Board which also confirmed the Director’s Further Decision.

10.In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted his claim of fear of harm from his uncle that caused him to flee from his country to come to Hong Kong for protection or that there was any assault incident or injuries caused to his father or his uncle’s son that it did not accept that the Applicant has any real risk that he would be harmed or killed by his uncle upon his return to India, and that in any event that even on the basis of the Applicant’s own case that his claim does not engage the BOR 2 ground that his claim for non-refoulement protection failed on the applicable ground.   

11.On 18 October 2019 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 Board’s decision but without putting forth any proper ground for his intended challenge, nor was he able to do so at the hearing of his application other than just repeating his claim of fear of harm from his uncle as before. 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.

12.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.

13.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 59 – 65 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, and given the fact that even on the basis of his own case at the highest that the Applicant’s claim simply does not engage the BOR 2 ground on its limited scope, as correctly found by the Board, I do not find any reasonably arguable basis to challenge the finding of the Board.  

14.The fact is that it has also been established by the Director in its earlier decision on the other applicable grounds including torture risk, BOR 3 risk and persecution risk that the risk of harm in the Applicant’s claim even 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.

15.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 on BOR 2 risk as well as all the other applicable grounds.

16.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 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