Tarun Kumar v. Director of Immigration

HCAL 2239/2023

[2024] HKCFI 901

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2239 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;

Order by Deputy High Court Judge Bruno Chan:

1.  Leave to apply for Judicial Review be granted;

2.  The Applicant do issue the Originating Summons within 14 days from the date hereof in accordance with Order 53, rule 5 of the RHC (Cap 4A); and

3.  The Applicant do serve a copy of the Originating Summons together with all the relevant documents on the Director of Immigration as respondent.

Observations for the Applicant:

Introduction

1.This is an application for leave to apply for judicial review of the decision of the Director of Immigration (“the Director”) dated 7 December 2023 refusing to allow the Applicant to make a subsequent claim for non-refoulement protection after his previous claim had been rejected by both the Director and the Torture Claims Appeal Board (“the Board”) under the Unified Screening Mechanism (“USM”) on all applicable grounds.

2.The Applicant is a 31-year-old national of India who arrived in Hong Kong on 20 March 2013 as a visitor with permission to remain as such up to 3 April 2013 when he did not depart and instead overstayed, and was arrested by police on 17 April 2013. 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 creditor for failing to repay his debts.

Previous Non-Refoulement Claim

3.By a Notice of Decision dated 9 January 2018 the 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”).

4.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 creditor and followers upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that in any event it was a private monetary 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 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 his creditor to locate him.

5.The Applicant’s appeal against the Director’s decision was dismissed by the Board on 5 November 2018 after hearing him in evidence and submissions and upon finding no merits in his claim or his appeal, and that it also confirmed the Director’s decision.

6.The Applicant’s application for leave to apply for judicial review of the Board’s decision was then refused by this Court on 12 August 2021 upon finding none of the proposed grounds for his intended challenge reasonably arguable, that there was no error of law or procedural unfairness in his process before the Board or in its decision, and that there was no prospect of success in his intended application (HCAL 2664/2018 [2021] HKCFI 2356).

7.The Applicant’s subsequent appeal against the Court’s decision was dismissed by the Court of Appeal on 25 February 2022 (CACV 404/2021 [2022] HKCA 285).

8.The Applicant’s Notice of Motion for leave to appeal against the Court of Appeal’s decision was also dismissed by the Court of Appeal on 23 June 2022 ([2022] HKCA 848), and then by the Appeal Committee of the Court of Final Appeal on 3 April 2023 under Rule 7 of the Hong Kong Court of Final Appeal Rules, Cap 484A.

Request To Make Subsequent Claim

9.Some 3 months later on 26 July 2023 the Applicant in writing to the Immigration Department requested to make a subsequent claim on the basis that he has since converted his religion from Hinduism to Islam in Hong Kong that his family in India have publicly disowned him, and given Hinduism is the main religion of the majority of the Indian population and the anti-conversion laws in many places in India that he fears of being harmed or killed by hardcore Hindu nationalists/extremists and/or the Indian law enforcement agencies if refouled to his home country.

10.There are however constraints on a claimant who has previously made a non-refoulement claim to make a subsequent claim, as stipulated by Section 37ZO of the Immigration Ordinance as follows:

“(1) Except as provided in subsection (2), a person who has previously made a torture claim must not subsequently make another torture claim.

(2) A person may make a subsequent claim if the person provides sufficient evidence in writing to satisfy an immigration officer that –

(a) there has been a significant change of circumstances since the previous claim was finally determined or withdrawn; and

(b) the change, when taken together with the material previously submitted in support of the previous claim, would give the subsequent claim a realistic prospect of success.

(3) In deciding whether or not a person may make a subsequent claim under subsection (2), an immigration officer may take into account any finding of credibility or fact made by an immigration officer or the Appeal Board in relation to a torture claim previously made by the person.

(4) If an immigration officer decides that a person may make a subsequent claim under subsection (2), the immigration officer must give the person written notice of the decision.

(5) If an immigration officer decides that a person may not make a subsequent claim under subsection (2), the immigration officer must give the person written notice of the decision, and the notice must also include the reasons for the decision.”

11.Accordingly, the Director on 27 July 2023 required the Applicant to provide further information and evidence in writing in support of his request within 14 days, which he subsequently did via his lawyer from Duty Lawyer Service (“DLS”) which were recorded by the Director as follows:

(a)  That he has converted his religion from Hindu to Islam in 2021 as evidenced by an attached copy of “Muslim Certificate” issued by the Kowloon Mosque & Islamic Centre of Hong Kong;

(b)  That many states in India have passed anti-conversion laws making it illegal for such conversion, while other states are in the process of enacting similar laws, and that the current ruling party in India Bharatiya Janata Party (“BJP”) is a hardcore Hindu nationalist party which has been trying to enact such laws on the national level;

(c)  That his family in India were very upset and angry over his conversion and had demanded and threatened him to reconvert back to Hinduism, and when he refused, his parents then published disinheritance notices in newspapers in India to disown and disinherit him from his family;

(d)  That such announcements by his family have put him in the spotlight of the Hindu nationalists/extremists as well as the law enforcement agencies that he fears of being persecuted and prosecuted if refouled to India as well as becoming a target for attacks by hardcore Hindu nationalists/extremists anywhere in the country;

(e)  That internal relocation is not an option as he will be easily located by Hindu nationalists/extremists and the Indian authorities; and

(f)  That he will not receive protection from the state or the police for breaking the anti-conversion laws.

12.In support of his request the Applicant also submitted 10 documents including the said Muslim Certificate of his conversion, copies of disinheritance notices published by his parents against him in newspapers, and news articles and reports on anti-conversion laws and as well as incidents of attacks on persons due to their religious conversions from Hinduism in India.

13.By a Notice of Decision dated 7 December 2023 the Director accepted the Applicant’s claims of his conversion of his religion from Hinduism to Islam and his parents’ subsequent public disinheritance notices in India, but refused to allow his request to make such a subsequent claim upon finding no information indicating that he has experienced any sort of threats from the Hindu nationalists/extremists or the Indian law enforcement agencies that would put him at real risk of harm upon his return to India other than his bare assertions and speculation, that it is not accepted that he has a well-founded fear of persecution on the basis of his religious conversion, nor does such conversion constitute a significant change of circumstances since the determination of his previous claim which would give his subsequent claim a realistic prospect of success, while the latest COI in India show that the anti-conversion laws are meant to prevent forced religious conversions of individuals and to prevent religious groups from recruiting members from other religions, and that only 12 out of 28 states in India have anti-conversion laws that the Applicant may relocate to other states where no anti-conversion laws are in force that it is not accepted that his religious conversion would give rise to a real risk of harm to him upon his return to his home country or that it would constitute a significant change of circumstances that would give his subsequent claim a realistic prospect of success.

14.On 13 December 2023 the Applicant filed a Form 86 in these proceedings for leave to apply for judicial review of the Director’s decision, and put forward the following grounds for his intended challenge:

(1)  That the Director reached the decision wrongly in assessing the Applicant’s request to make a subsequent claim in that the decision was not reasonable or fair as required by the Wednesbury test in failing to recognize that the Applicant’s right to life under BOR 2 must be protected by criminal law from extra-judicial killings that he may face if repatriated to his home country;

(2)  That the Director failed to appreciate or give proper importance or weight to the presence of state acquiescence in the Applicant’s case which led to an unfair outcome of rejecting his request to make a subsequent claim;

(3)  That it was wrong and unfair of the Director to criticize the Applicant for failing to raise his claimed new fear of harm in his previous claim when his religious conversion only occurred thereafter in 2020;

(4)  That it was unreasonable of the Director to reject the Applicant’s subsequent claim on the ground that he did not have any interaction or contact with or personally experience any sort of threats from the Hindu extremists when the fact is that the Applicant has since 2013 been in Hong Kong without ever returning to his home country to experience any such threats in India that the state would be rendered liable to the Applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence; and

(5)  That the Director failed to attain high standard of fairness required by the Wednesbury test in taking into account of or to give sufficient weight to the Applicant’s argument that anti-conversion laws are steadily being passed throughout his home country which is a very serious problem as reported by various human rights organizations on the matter which stated testament to the Applicant’s assertions that the Director’s decision should be considered unreasonable in the scope of public law.

15.Before considering whether these grounds are reasonably arguable for the Applicant’s intended challenge of the Director’s refusal of his request to make a subsequent claim and thus denied him of the 2-tier screening process of his such claim under the USM, it would be relevant to first set out in details the reasons for the Director’s refusal as stated in the decision:

“12. … In your Request, you turn to claim that if you are returned to India, you will be persecuted and prosecuted by hard-core Hindu nationalists and Indian law enforcement agencies, as you have converted from Hinduism to Muslim in Hong Kong in 2020. It is not raised in your previous claim and is taken to be a new fear of harm in your Request.

13. According to your adduced evidence, you converted to Muslim in Hong Kong in 2020. Your parents were disappointed with your decision and disinherited you which was made public through public notices published on newspapers in India. You have provided your Muslim Certificate (see Item 1 or Item 6 above) and the public notices made by your parents (see Item 2, Item 3 and Item 10 above) to support such. You then alleged that it caught the attention of Hindu nationalists and Indian law enforcement agencies and they would persecute and prosecute you. You will be tortured and killed by Hindu extremists.

14. You submitted documents Item 1 to 10 (see paragraphs 9 and 11 above) in support of your Request. As for Items 1 and 6, they show that you converted to Muslim in 2020 in Hong Kong. As for Items 2, 3 and 10, they show that your parents disowned and disinherited you. As for Item 4, it reports that a man, who had converted himself, his wife and three children to Islam and wanted to convert his mother as well, was hacked to death reportedly for his religious conversion. As for Item 5, it reports a religious clash between Hindus and Muslims in Gurugram, Haryana in northern India. As for Item 7, it is a report issued by US Religious Freedom Commissions about the state-level anti-conversion laws in India. As for Item 8, it is a Christian perspective over the anti-conversion laws in India. As for Item 9, it is a news article reporting the US Religious Freedom Commissions’ report i.e. Item 6. All these supporting documents have been taken into considerations.

15. While accepting that your conversion to Muslim and your parents’ public notices are not in dispute, it is observed that there is no information indicating that you have had any interaction or contact with, or personally have experienced any sort of threats from the Hindu nationalist/extremists and Indian law enforcement agencies so far. There is also nothing in your adduced evidence showing that you, being an ordinary citizen who has been absent from India for more than eight years, have achieved a personal profile, whether religious or political, that could possibly catch enough attention from the alleged Hindu nationalists/extremists and Indian law enforcement agencies and put you into a real risk of harm upon return to India, just because of your individual and voluntary decision to convert to Muslim in Hong Kong in 2020. As such, it appears to be your bare assertion that the disinherit notices published by your parents put you in the spotlight of the Hindu nationalists/extremists and law enforcement agencies in India which, as you alleged without providing any credible evidence, are targeting you and intending to persecute and prosecute you upon your future return. It is not accepted that you have a well-founded fear of persecution on the basis of your religious conversion in Hong Kong. It is assessed that the vague and bare assertion that you would be harmed or killed by the Hindu nationalists/extremists and Indian law enforcement agencies if returned to India does not constitute a significant change of circumstances which would give the subsequent claim a realistic prospect of success.

16. You have argued that many states in India have passed the anti-conversion Laws and made religious conversion illegal. You have provided a report titled “Issue update: India’s State-Level Anti-Conversion Laws” issued by United States Commission on International Religious Freedom in March 2023 and some news in relation to religious conversion in India to support your argument. However, having looked into the latest country condition in India, it is found that the anti-conversion Laws are meant to prevent religious groups from recruiting members from other religions. According to the 2022 Country Reports on Human Rights Practices: India, “State governments continued to pass laws related to forced religious conversion for the purpose of marriage. These laws seek to make forced religious conversion by marriage a criminal offence. Supporters of the laws sometimes characterized them as preventing “love jihad” or Muslim men attempting to marry Hindu women for the purpose of religious conversion. Civil society groups criticized the laws as violating constitutional protections on freedom of religion, but some survey data suggested religious minority communities themselves sometimes expressed support for anticonversion measures.” Moreover, the Supreme Court in India has ruled in the case of S. Pushpabai vs. C.T. Selvaraj that an individual has the right to convert to another religion, but that such a conversion should be genuine and voluntary and that any coercion or misrepresentation in connection with a religious conversion is a violation of the right to freedom of religion. It is therefore considered that your fear of being persecuted by the Hindu nationalists/extremists and Indian law enforcement agencies just because of your individual decision to convert to Muslim amounts no more than an speculation which could not advance your Request.

17. Furthermore, according to the same report titled “Issue update: India’s State-Level Anti-Conversion Laws” provided by you, only 12 out of India’s 28 states have anti-conversion laws as at February 2023, which include Arunachal Pradesh, Chhattisgarh, Gujarat, Haryana, Himachal Pradesh, Jharkhand, Karnataka, Madhya Pradesh, Odisha, Rajasthan, Uttarakhand, and Uttar Pradesh, and enforcement of these laws varies across different states. According to a piece of news article in December 2022, the state’s finance minister of Punjab, Harpal Singh Cheema, said there was no need to bring an anti-conversion bill in Punjab. He furthered that “Punjab is a secular state. It is the land of Gurus and there has not been a riot. Strict action will be taken against the culprits. Everyone is free to practice any religion. But no one should be coerced”. As such, even if assuming the anti-conversion laws are imposing a risk of harm against you, upon your future return to India, you may still exercise your own volition to return to your home town in Punjab (given that the Board did not accept that you were at risk of harm from Kanta should you return to India), or relocate to other states where no anti-conversion laws are in force. It is not accepted that there is sufficient and substantial information in the country condition in India that would give rise to a real risk of harm to you upon your future return.

18. In your previous claim, the Board found that there were a number of significant inconsistencies between the claims made in your NCF, to the ImmD, and in your oral evidence at the hearing and considered that the explanation for the inconsistencies was that you were not telling the truth (see paragraph 8(d) above). The Board also held that although you raised a new matter at the hearing, stating that you did not want to live in India any longer because of the discriminatory caste system, you were not able to identify any specific harm that you feared you may face in the future because of the caste system (see paragraph 8(g) and (h) above). In your current Request, you again raised a new matter, stating that your conversion to Muslim in Hong Kong would bring you a risk of persecution upon return to India. However, as discussed above, you are merely offering a vague and bare assertion that you would be harmed or killed by the Hindu nationalists/extremists and Indian law enforcement agencies. It is considered that such an assertion does not constitute a significant change of circumstances which would give the subsequent claim a realistic prospect of success.”

16.It is clear from the above that the Director did not take any issue with the Applicant’s claims of having converted his religion from Hinduism to Islam while in Hong Kong and that as a result his parents in India have publicly disowned and disinherited him, but refused his request to make a subsequent claim on the following bases and findings:

(1)  That having left India for years the Applicant has not achieved any profile in his home country to attract attention from the Hindu nationalists/extremists or the Indian authorities over his religious conversion that his claimed fear of harm from them is just his bare assertion and speculation;

(2)  That relevant COI show that the Indian Constitution guarantees freedom to practice any religion that it is not accepted that his religious conversion would give rise to a real risk of harm to him upon his return to India;

(3)  That the anti-conversion laws in India are meant to prevent forced religious conversion of individuals and to prevent religious groups from recruiting members from other religions and hence would not be applicable to the Applicant’s case;

(4)  That in any event not all the states in India have anti-conversion laws or would enforce them that the Applicant can relocate to those states that do not have anti-conversion laws including his home state of Punjab; and

(5)  Accordingly the Applicant’s religious conversion in 2021 in Hong Kong does not constitute a significant change of circumstances since the determination of his previous claim nor would it give his subsequent claim any realistic prospect of success.

17.It is therefore against these findings by the Director for his reasons to refuse the Applicant’s request to make a subsequent claim that I now turn to consider the Applicant’s proposed grounds for his intended challenge of the Director’s refusal.

18.The first 3 grounds can be easily rejected as just the Applicant’s bare assertions without any necessary or relevant details or particulars or elaboration as to how and why they would be applicable to his case, and that on the factual basis of his case that they are in my view not at all relevant or applicable to his claim.

19.As for his complaint under Ground (4) that it was unreasonable for the Director to find his fear of harm from Hindu nationalists/extremists or Indian law enforcement agencies due to his religious conversion as just bare assertion and speculation because he has been away from the country for years and has not achieved any profile to attract any attention, given the fact that his parents did publicly disinherit him and that there were reported cases of attacks and killings by Hindu nationalists/extremists in various places in India due to religious conversions, and that there are anti conversion laws in force in those places, it seems to me that the Director had failed to properly or adequately consider the relevant COI by simply brushing aside the Applicant’s claimed risk as mere assertion or speculation due to the absence of any evidence of personal threats against him and his absence for years from the country, as it is well established that the correct approach to a personal risk of harm can be established by way of evidence of similarly situated persons in that particular country as shown in relevant COI that an applicant need not prove that he himself has been persecuted in the past or that he himself would be persecuted in future, and that he may prove that the fear he felt resulted not from reprehensible acts committed or liable to be committed directly against him but from reprehensible acts committed or liable to be committed against the members of a group to which he belonged: see Salibian v Canada (Minister of Employment and Immigration) [1990] 3 FC 250 (CA), 1990 CanLII 7978 (FCA); and Batayav v SSHD [2004] ACD 5, and while proving the likelihood or probability of an applicant being harmed or persecuted if refouled to his home country would require showing ‘more than a mere possibility’ but not that it would be ‘highly likely’, and that the risk of persecution must go beyond mere theory or suspicion, it however needs not have to meet the test of being ‘highly probable’: TK v Jenkins & Anor [2013] 1 HKC.

20.For these reasons I am of the view that it is reasonably arguable that the Director erred in finding the Applicant’s fear of harm from the Hindu nationalists/extremists or the Indian law enforcement agencies as mere bare assertion or speculation in refusing his request to make a subsequent claim.

21.As for the Applicant’s complaint under Ground (5) that the Director failed to take proper or sufficient account or consideration of the anti-conversion laws in India in assessing his subsequent risk, while it is true according to the document (Footnote 3) “Anti-conversion law: What it is and how various states implement it”, 6 June 2023, cited by the Director in [16] of the decision, that the anti-conversion laws are meant to prevent forced religious conversion of individuals and to prevent religious from recruiting members from other religions, the document did go on to raise various concerns over the implementation of such laws in various states in India as follows:

“Implementation in states

…

In recent years, India has witnessed multiple debates over the use of anti-conversion laws. Some people believe that these laws are necessary to protect the cultural and social cohesion of the country, while others say these laws are used as a tool to suppress minority religions and violate the right to freedom of religion, which is protected by international human rights laws.

The Supreme Court of India has ruled that anti-conversion laws are constitutional as long as they do not interfere with an individual’s right to freedom of religion.

According to the United States Commission on International Religious Freedom(USCIRF) reports of 2016 and 2018, there are very few arrests or prosecutions under these laws but they “create a hostile, and on occasion violent, environment for religious minority communities because they do not require any evidence to support accusations of wrongdoing”.

A recent report by the USCIRF in March this year stated that anti-conversion laws promulgated by state governments in India “violate international human rights law’s protections for the tight to freedom of religion or belief”.

It stated that the laws violate the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR).

Arrests under the law

The USCIRF has highlighted certain incidents of arrests, including an incident in 2017, where three Christians were arrested in the Khandwa district of Madhya Pradesh following allegations that they were converting people.

In October 2022, a 24-year-old man was arrested in Bengaluru under the Karnataka Protection of Right to Freedom of Religion Act, 2022, the anti-conversion law that came into force on September 30, 2022 in the state.

In February this year, 16 persons were arrested under the UP Prohibition of Unlawful Conversion of Religion Act for allegedly luring people to convert to Christianity in Muradpur Kotila village.

In May 2023, as many as 18 persons were arrested in Uttar Pradesh under the anti-conversion law for offering money to convert people to Islam.”

22.Similarly, in another document cited by the Director in [16] of the decision, “Anti conversion laws: All you need to know” dated 10 October 2023 (Footnote 5), in which the Director referred to a ruling by the Supreme Court in India in the case of S. Pushpabai v CT Selvaraj that an individual has the right to convert to another religion but that such a conversion should be genuine and voluntary, the document also referred to various issues associated with these anti conversion laws as follows:

“What are the issues associated with anti-conversion laws?

1. Freedom of religion: Anticonversion laws can be seen as a violation of the right to freedom of religion, which is protected by international human rights laws. These laws can restrict an individual’s ability to choose their own religion and can be used to suppress minority religions.

2. Discrimination: Anticonversion laws can be used to discriminate against certain religious groups, particularly minority religions. In some cases, these laws have been used to target and persecute minority religious groups.

3. Coercion and manipulation: Some people argue that anticonversion laws are necessary to prevent coercion and manipulation in religious conversion. However, others believe that these laws are often used as a pretext to suppress minority religions and restrict the right to freedom of religion.

4. Social and cultural divisions: Anticonversion laws can contribute to social and cultural divisions within a community or society, particularly if they are used to protect the dominant religion.

5. Conflict with other laws: Anticonversion laws can sometimes conflict with other laws such as laws that protect freedom of expression or the right to freedom of association.

6. Effectiveness: There is debate over the effectiveness of anticonversion laws in achieving their intended goals. Some people argue that these laws are not effective in preventing religious conversion, while others believe they are necessary to protect the cultural and social cohesion of a community and society.”

23.It appears that in relying on these documents to arrive at its finding that the Applicant’s claimed fear of being persecuted by the Hindu nationalists/extremists and Indian law enforcement agencies due to his religious conversion amounts to no more than his speculation, the Director did not take account of those various issues or concerns that have risen over the anti-conversion laws in India, and hence it is in my view reasonably arguable that the Director failed to consider the relevant COI properly or sufficiently and/or of being unfairly selective in the consideration of such information in the assessment of the Applicant’s subsequent claim.

Decision

24.In the premises, and for all these reasons, I am of the view that the Applicant’s intended application for judicial review of the Director’s decision in refusing to allow him to make a subsequent claim is reasonably arguable on the grounds that (1) the Director erred in finding that the Applicant’s fear of harm due to his religious conversion from Hinduism to Islam from the hardcore Hindu nationalists/extremists and/or the Indian law enforcement agencies as mere bare assertion or speculation; and that (2) the Director failed to take proper or sufficient consideration of the relevant COI in the assessment of the Applicant’s claimed risk due to his such religious conversion, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

25.Accordingly I grant leave to the Applicant to do so, and direct that he shall file and issue the originating summons within 14 days of this decision, and to serve a copy thereof together with all the relevant documents on the Director as respondent.

Dated the 28^th day of March 2024

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