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

HCAL 1825/2019

[2024] HKCFI 2398

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1825 OF 2019

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J U D G M E N T

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THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 20 June 2019 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 this 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 the India. He last entered Hong Kong on 28 August 2015. The Immigration Department refused his entry, whereupon a legal assistant assisted him to lodge a non-refoulement claim by written representation on 29 August 2015.

5.According to the applicant, if he returns to India, he will be harmed or killed by Ravi Kumar (“Ravi”), a member of the Shiromani Akali Dal (“SAD”), Ravi’s son, Rishu and other SAD supporters because he refused to leave the Indian National Congress Party (“INC”) and joined SAD. He added that he believed that Ravi wanted to take revenge on him because he had done promotional work for the INC.

6.In March 2015, there was an election for Village Head called the Sarpanch election. He supported the INC candidate Gagan Singh, who was running against Ravi, the SAD candidate. On the day of the election in March 2015, the INC and SAD set up booths outside the school where the election was held. The applicant was running the booth alone where Rishun and other 4 or 5 SAD members came and told him to leave. He refused whereupon they attacked him and damaged the booth. He had to receive medical treatment. Ravi won the election. One evening in July 2015, Ravi and his son attacked the applicant, warning him he had better support the SAD or leave India, for he would be killed if he remained in India. He made a report to the police at Kanwa Police Station. The police refused to take action against Ravi. He sought refuge in Patiala and found a job there. He accompanied his employer to come to Hong Kong on 19 August 2015. He was refused entry. His father told him that Ravi had said that if he returned, he would be killed.

The Director’s Decisions

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

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

b.  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

c.  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”).

8.By Notice of Decision dated 11 November 2015 (“the Director’s First Decision”), the Director rejected the applicant’s claim on those risks.

9.The Director had further considered the applicant’s non-refoulement claim on 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”).

10.By Notice of Further Decision dated 2 March 2017 (“the Director’s Second Decision”), the Director rejected the applicant’s claim on BOR 2 risk.

11.The Director found that (i) the evidence showed that Ravi, Rishu or other SAD members did not have real intention of harming or killing him [11]-[12]; (ii) state protection would be available to him [13] and internal relocation was a viable alternative for him [14].

The Board’s Decision

12.The applicant appealed the Director’s First Decision and Second Decision to the Board. On 27 January 2016, the Board conducted an oral hearing for his appeal, during which he was assisted by an interpreter [12].

13.Having considered the evidence, the Board found:

“47. For all the reasons given, I found that the Appellant’s story about the Sarpanch election in March 2015 was not possible and/or credible.”

14.The Board found that there was no factual basis to support the applicable risks. It further found:

“59. The findings on the credibility of the evidence means that there is no reliable and/or plausible evidence to show that there had been acquiescence or failure of due diligence on the part of the police.

60. The Appellant has not claimed that a consistent pattern of gross, flagrant or mass violations of human rights exists in India, and he has not adduced any evidence in support of that contention.”

15.For the above reasons, the Board dismissed the applicant’s appeal and confirmed the Director’s Decisions.

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

16.The applicant has filed Form 86 on 2 July 2019 for leave to apply for judicial review of the Board’s Decision.

17.In his affirmation in support of his application, the applicant had submitted 32 pages of submissions, which I shall summarize as below:

(1)  Irrationality: failing to consider state acquiescence; failing to consider relevant information and selectively placing on irrelevant information; failing to consider a consistent system of human rights violations;

(2)  Procedural impropriety: insufficient enquiry; failing to provide adequate reasons for its decisions; failing to enquire into the country of origin information (“COI”); failing to call for psychiatric or psychological report; failing to consider the extended state acquiescence; the adjudicator being a different from the interviewing officer and no proper consideration of internal relocation.

DISCUSSION

18.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).

19.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant says his enemies are getting stronger and he asks the Court to review his case.

20.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.”

21.The Board, for the reasons given above, found that the applicant’s claimed risks were unfounded.

22.Those grounds set out in paragraph 17 do not assist the applicant. They are mostly general and bare assertions without any evidence in support and therefore are not valid reasons[1]. The Board had considered state acquiescence. The applicant did not ask for any psychiatric or psychological report on himself. The adjudicator of the Board has to be a different person other than the immigration officer.

23.I find that those grounds are not valid to challenge the Board’s Decision.

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

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

DISPOSITION

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

The applicant appeared in person.