Kumar Neeraj v. Torture Claims Appeal Board

HCAL 513/2022

[2023] HKCFI 3013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 513 OF 2022

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 28-year-old national of India who arrived in Hong Kong on 23 November 2019 as a visitor with permission to remain as such up to 7 December 2019 when he did not depart and instead overstayed, and was arrested by police some 9 months later on 29 September 2020.  After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his former girlfriend’s family who objected to their relationship.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Una, Himachal Pradesh, India. 　While at school he met and formed a relationship with a girl from a neighbouring village, but when her family later found out about their relationship they disapproved it due to their different castes and warned the Applicant to stop seeing his girlfriend, but their demands were ignored.

3.One day in 2016 while he was on the way to school, the Applicant was attacked by his girlfriend’s elder brother and his friends with hockey sticks that he sustained injuries to his forehead which required medical treatment at the local hospital.    

4.Thereafter as his girlfriend’s family continued to make threats against him, the Applicant became fearful for his life and left town to take shelter in a friend’s place in Maharashtra, but when he later heard that his girlfriend’s brother and his followers were still looking for him everywhere, he felt it was no longer safe to remain in India, and so he fled to Delhi, and on 30 June 2019 he departed India for Hong Kong where he subsequently overstayed, and after his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 22 April 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

5.By a Notice of Decision dated 21 June 2021 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”).

6.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 family 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 of any real intention of them to seriously harm or kill him other than to put pressure on him to stop seeing his girlfriend, that in any event it was a private relationship dispute between them 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 good education to move to other areas of the country away from his home district in large cities where it would be difficult if not impossible for his girlfriend’s family to locate him.

7.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 23 December 2021 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 13 May 2022 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision the Board accepted the Applicant’s claim of threats from his former girlfriend’s family but found no evidence of any real intention of them to seriously harm or kill him, and that in any event it was a private dispute between them without any official involvement that state or police protection would be available to the Applicant 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 district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.    

9.On 22 June 2022 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 but without putting forth any proper ground for his intended challenge. 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.

10.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.

11.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 the Applicant’s 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.                

12.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.

13.Moreover, the Applicant recently on 6 November 2023 wrote to request to withdraw his application as his problem in India has been resolved that he no longer wants to seek asylum in Hong Kong, and that he now wants to return to his home country as soon as possible.

14.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 of no more problem for him to return to his home country, I accordingly dismiss his leave application.

Dated the 20^th day of November 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