Case Document

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HCAL 1724/2023

[2024] HKCFI 2129

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1724 OF 2023

BETWEEN
	Dhanasamy Antony Broos	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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 26-year-old national of India who arrived in Hong Kong on 23 January 2020 as a visitor with permission to remain as such up to 6 February 2020 when he did not depart and instead overstayed, and almost 9 months later on 3 November 2020 he surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if he returned to India he would be harmed or killed by his 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 Tiruchirappalli, Pullambadi, Tamil Nadu, India. After leaving school he worked as a restaurant chef in various places, and dated his girlfriend whom he met at school in his home district.

3.In 2015 when his girlfriend’s family learnt of their relationship, they raised their objection due to their different caste and religion, and demanded that they stopped seeing each other.

4.Yet the Applicant and his girlfriend continued to do so albeit secretly, but in 2018 when they decided to get married, and when the Applicant together with his father went to his girlfriend’s home to propose to her parents with the marriage but was rejected by her father who threatened to kill the Applicant and to ruin his family.

5.A few weeks later his girlfriend came to stay in the Applicant’s home after a big quarrel with her parents over their objection to her marrying the Applicant, whereupon her father together with several men came to take her away by force, during which they beat both the Applicant and his father with kicks and punches, and before they left, her father threatened to have the Applicant killed.

6.As a result the Applicant fled to Madurai to stay with a friend and found a job there working as a chef in a restaurant before moving on to Qatar to work as a restaurant chef until late 2019 when he returned to India.

7.Upon returning to his home district the Applicant tried to resume dating his girlfriend, but was again confronted by her father and brother who proceeded to beat him and with a warning that next time they would kill him. As a result the Applicant became fearful for his safety and therefore departed India on 23 January 2020 for Hong Kong where he subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 26 July 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

8.By a Notice of Decision dated 27 September 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”).

9.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 just to deter him from 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 1.3 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 or Mumbai where it would be difficult if not impossible for anyone to locate him.

10.On 11 October 2021 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 7 July 2023 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 15 September 2023 his appeal was dismissed by the Board which also confirmed the Director’s decision.

11.In its decision the Board accepted the Applicant’s claim of threats from his girlfriend’s family over their relationship but found no reliable evidence of any real intention of them to seriously harm or kill him over what was essentially some private dispute between them only 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 alternatives for him to move safely to other parts 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.

12.On 27 September 2023 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)   That the Adjudicator did not even take time to properly consider the Applicant’s case or his personal circumstances and just directly dismiss his appeal;

(2)   That the Adjudicator was unreasonable in refusing to accept the documents submitted by the Applicant simply because they had not been translated, and refused to give him time to arrange for their translation either; and

(3)   That the interpreter failed to properly interpret the Applicant’s evidence or submissions and tried to rush his evidence because he had another job to do.

13.These are however all just some bare and vague assertions of the Applicant without any relevant or necessary particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way did the Adjudicator fail to properly consider the Applicant’s claim, or what documents that the Applicant had tried to submit but were refused by the Adjudicator due to lack of translation when up to even now that the Applicant has failed to identify or provide them as evidence, or in what way did the interpreter fail to assist the Applicant during his appeal hearing before the Board. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for his intended challenge.

14.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.

15.In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in his claim 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.

16.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.

17.Moreover, the Applicant recently on 3 June 2024 filed an affirmation requesting to “close” his application as his problem in his home country has been resolved.

18.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 August 2024

(Chung Lai Fan, Christine)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 20 August 2024 Dhanasamy Antony Broos Applicant’s ref. no.: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 20 August 2024 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 18939 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1153/21 (Formerly RBCZ 10451/21) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)