Sunil Kumar v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 1249/2024 on BabelCite. This High Court CFI judgment was delivered on 3 December 2024.
1. By an Order dated 25 April 2022, this Court gave leave to the applicant to apply for judicial review of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office’s Decision dated 9 March 2017 (“the said Board’s Decision”).
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HCAL 1249/2024 [2024] HKCFI 3325 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1249 OF 2024 _____________
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________________ J U D G M E N T ________________ THE APPLICATION 1.By an Order dated 25 April 2022, this Court gave leave to the applicant to apply for judicial review of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office’s Decision dated 9 March 2017 (“the said Board’s Decision”). 2.By consent of the parties, the said Board’s Decision was quashed and the applicant’s appeal was determined by another Board. This Board, having considered the applicant’s evidence also dismissed his appeal by the Board’s Decision dated 24 July 2024 (“the Board’s Decision”). 3.The applicant applies for leave to apply for judicial review of the Board’s Decision. 4.The applicant asked for a hearing. He appeared before the Court on 4 November 2024. The applicant 5.The applicant, aged 43, is an Indian. He last entered Hong Kong on 23 October 2015 as a visitor and was refused permission to land. During the examination with the Immigration officer, he stated that he came to Hong Kong for sightseeing and visiting a friend. Thereafter, on the same day, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by Harvinder Kalyan (“Kalyan”) and Jaipal Sharma (“Sharma”) who were members of Bharatiya Janata Party (“BJP”). He also feared harm from some villagers who mistakenly believed that he breached the beef ban rule of Hindu. 6.According to the applicant, he was a supporter of Congress Party (“CP”) and he helped to promote the Indian National Lok Dal Party (“INLD”) during the election in summer 2010, the opposition of BJP. After INLD won the election, Kalyan and Sharma started to threaten the applicant as they blamed him for the BJP’s loss. Between 2013 and 2015, the applicant went to Saudi Arabia to work. Upon his return in 2015, the BJP came into power. One week later, he was attacked by Kalyan and Sharma, whom he believed to be taking revenge for their loss in the previous election. 7.Meanwhile, Kalyan and Sharma also spread rumors about the applicant converting from Hindu to Islam and started eating beef. Such rumors resulted in the threats from 50 to 60 villagers against the applicant. The applicant then made his first attempt to escape to Hong Kong on 28 July 2015. When he was deported back to India, he encountered another attempted attack from Kalyan but he managed to escape. Out of fear, he fled to Hong Kong again for protection on 23 October 2015. 8.The applicant was of the view that he could not seek protection from the police because his previous experience with them showed that they were under the influence of BJP. He also considered internal relocation not viable because BJP could utilise its network to locate him. 9.Details of the fact were set out at paragraph 6 of the Notice of Decision dated 25 January 2016 by the Director (the “Director’s 1st Decision”). The Director’s Decisions 10.The Director considered the applicant’s claim in relation to the following risks:
11.By way of the Director’s 1st Decision, the Director dismissed the applicant’s claim on BOR 3 risk, Persecution risk and Torture risk. The Director found that (i) there was no evidence indicating that Kalyan, Sharma or the villagers had continuous adverse interest towards him [18]; (ii) state protection would be available [19]-[27]; and (iii) internal relocation would be viable [28]-[33]. 12.In the Notice of Further Decision dated 28 November 2016, the Director also rejected the applicant’s claim on BOR 2 risk (“the Director’s 2nd Decision”) for the reason that there was no evidence to show that his right to life under BOR 2 would be violated upon his return. The Board’s Decision 13.The applicant appealed the Director’s 1st and 2nd Decisions to the Board. On 9 March 2017, the Board dismissed the applicant’s application due to his late filing of the notice of appeal/petition. On 26 June 2023, the Court quashed the Board’s Decision and ordered that the appeal be remitted for fresh determination. On 5 June 2024, the Board conducted an oral hearing. 14.The Board accepted the applicant might be subjectively afraid of returning to India because of the claimed past threats [43]. However, the Board found no reliable evidence suggesting that the applicant would (i) be harmed by Kalyan, Sharma or the villagers upon return to India; (ii) be harmed outside his locality; (iii) suffer injury that reached the requisite level of severity and (iv) be denied state protection [44]. 15.Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Persecution risk, BOR 2 and BOR 3 risk or Torture risk [46]-[56], [68]-[83], [93]-[96]. Furthermore, the country of origin information also indicated the availability of state protection [57]-[65], [67] and internal relocation [84]-[92]. 16.The Board therefore dismissed the applicant’s appeal and confirmed the Director’s Decision. Application for leave to apply for judicial review of the Board’s Decision 17.The applicant has filed Form 86 dated 31 July 2024 for leave to apply for judicial review of the Board’s Decision. 18.In his affirmation in support of his application, the applicant raise the grounds below to challenge the Board’s Decision.
DISCUSSION 19.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). 20.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant did not make any submission to challenge the Board’s Decision. 21.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:
22.The Board, for the reasons given above, found that the applicant’s claimed risks were unfounded. The applicant’s reasons to challenge the Board’s Decision fail because Ground (1) is a non-point. He had appeared before the Board and was at liberty to make oral submissions to the adjudicator without any invitation from the adjudicator. Ground (2) is his bare assertion without any evidence in support. These reasons are not valid to challenge the Board’s Decision. 23.There is no reason that the Court should interfere with the Board’s finding of the facts. 24.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision. DISPOSITION 25.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. | |||||||||||||||||||||||||||||
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