Manish Kumar v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 171/2021

[2024] HKCFI 2055

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 171 of 2021

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being present in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 4 November 2020 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.The applicant asked for a hearing. He appeared before the Court on 31 July 2024.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.The applicant is a national of India, aged 37. On 25 May 2013, he entered Hong Kong and was allowed to stay until 8 June 2013. He overstayed since 9 June 2013. On 29 June 2013, he was arrested by police and referred to the Immigration Department on 30 June 2013. A removal order was issued against him on 19 July 2013. On 9 June 2014, he lodged a non-refoulement claim on the basis that, upon refoulement, he would be harmed or killed by his enemy because he had previously campaigned for Rajni Sharma, who represented India National Congress (“INC”) to compete with his enemy in 2012 election.

5.According to the applicant, about 4 months before the election, his enemy, the Shiromani Akali Dai (“SAD”) members had told him to support SAD. He refused. Rajni won the election over SHORI, the representative of the SAD. When the members were having a celebration, members of SAD came to attacked them. He was hit once on his back with a stick. He left on his motorcycle to see a doctor the same night. He was given some pills and ointment. He did not report to the police, as he knew that SHORI had close connection with the police. Ten to Twelve days later, SHORI’s men came to his house and told the applicant to leave the country. He told them that he was planning to leave India. They left. They then came to his house four or five times. So he left India for Hong Kong. He considered that state protection is not available to him as SHORI has close connection with the police and internal relocation is not viable as SHORI has wide connections. Details of his story can be found in paragraph 6 of the Director’s Decision dated 26 September 2018.

The Director’s Decision

6.The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

7.By way of the Director’s Decision, the Director dismissed the applicant’s claim as it was not substantiated. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatment was indicative of a small future risk of harm upon his return to India [15]; (ii) reasonable state protection would be available to him [22] - [30]; and reasonable internal relocation was available to him [31] - [33].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 10 September 2020, the applicant appeared before the Board. He had answered questions from the Board with the assistance of an interpreter.

9.Having considered the evidence, the Board found:

“48. The Appellant’s evidence is in parts internally inconsistent or at odds with objective COI. At the Hearing, the Appellant was frequently evasive or prevaricated. There is little of his evidence I consider can be relied on.

59. The Appellant has failed to put forward any credible evidence why SHORI or the SAD would have any interest in him or pose a threat to him. The Appellant’s own actions do not suggest he is in genuine fear of harm from SHORI or the SAD….

61. After considering all the evidence, I do not consider there are substantial grounds for believing the Appellant would face a real risk of persecution if he was refouled to India. This ground of claim accordingly fails.”

10.The Board further considered that even if the applicant had been able to show that he faced a real or genuine risk of harm as he alleged, internal relocation would be a viable option for him [77] - [85].

11.Accordingly, the Board dismissed his appeal.

Application for leave to apply for judicial review of the Board’s Decision

12.The applicant has filed Form 86 dated 18 February 2021 for leave to apply for judicial review of the Board’s Decision.

13.In his affirmation in support of his application, the applicant did not raise any specific ground.

DISCUSSION

14.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

15.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant asked the Court to review the Board’s Decision because it did not believe his evidence.

16.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

17.The Board, for the reasons given above, found that the applicant’s claimed risks were unfounded. There is no valid ground from the applicant to challenge the Board’s Decision.

18.There is no reason that the Court should interfere with the Board’s finding of the facts.

19.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

CONCLUSION

20.I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

Dated the 13^th day of August 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