Dhir Rishav v. Torture Claims Appeal Board

HCAL 1566/2020

[2024] HKCFI 3450

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1566 OF 2020

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 29-year-old national of India who arrived in Hong Kong on 1 March 2016 as a visitor with permission to remain as such up to 15 March 2016 when he did not depart and instead overstayed, and on 16 March 2016 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 some debtor of his father’s money-lending business over their monetary dispute. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Khanna Ludniana, India where his father ran a money-lending business.

3.In 2012 one of his father’s debtors Rimmy failed to repay his loan, and when pressed by his father for repayment, Rimmy and his gang made threats against his father, of which his father then made a report to the police.

4.Soon thereafter Rimmy came with his men to beat his father and chopped off one of his father’s legs that his father was rushed to hospital for emergency treatments.

5.Due to his father’s injury the Applicant took over the running of his father’s money-lending business, and when he tried to press Rimmy for repayment of his loan, Rimmy again came with his men to threaten and beat him as well, and after one occasion in February 2016 when Rimmy and his men fired gun shots at him while he was travelling on a motor bike, the Applicant became fearful for his life, and on his father’s advice he fled to Delhi, and on 29 February 2016 he departed India 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”) and attended screening interview before the Immigration Department with legal representation.             

6.By a Notice of Decision dated 30 October 2018 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”).

7.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found his account of fear of harm from his father’s debtor Rimmy illogical and unbelievable, that even if such account were true that the level of risk of harm from Rimmy and his gang upon his return to India is assessed 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 Rimmy to seriously harm or kill him other than to deter his father from pressing him to repay his debts, that in any event it was a private monetary dispute between his father and Rimmy only 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 areas of the country away from his home district in large cities such as Delhi where it would be difficult if not impossible for Rimmy or his gang to locate him.

8.On 9 November 2018 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 12 May 2020 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 16 July 2020 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board found material inconsistencies discrepancies and implausibility in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from his father’s debtor Rimmy that caused him to leave his country to come to Hong Kong to seek protection as incredible and illogical, that even if his such claimed fear were real that there was no reliable evidence of any real intention of Rimmy to seriously harm or kill him other than to deter the Applicant or his father from pressing for the repayment of the loan, and that in any event it was a private monetary 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.    

10.On 27 July 2020 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 Board’s decision to refuse the Applicant’s appeal was unreasonable or irrational in the public law sense or the result of procedural errors or unfairness;

(2)   That the Board had unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirements;

(3)   That the Board failed to meet the greater care and duty owned to a self-represented claimant;

(4)   That the Adjudicator acted in a procedurally unfair manner in dealing with the Applicant’s appeal;

(5)   That in dismissing the Applicant’s appeal there was no indication that the Adjudicator had interacted with the facts of the Applicant’s claim or conducted any analysis of the supporting documents or turned her mind to the grounds under consideration being the risk of violation of the Applicant’s right to life under BOR 2;

(6)   That the Board had significantly relied on source of news not officially recognized or were simply hearsay;

(7)   That the Adjudicator had relied on some cases which are outdated considering the dramatic changes with the lack of credible source of information that resulted in making groundless speculation;

(8)   That despite the fact that the Applicant’s problems in his home country are very severe and had already submitted all the documents for his claim that the Adjudicator failed to deal with his case with sufficient care.       

11.These are however all just bare and vague assertions containing a few key words or phrases but 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 was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what relevant COI relied on by the Board were not officially recognized or were simply hearsay or outdated. 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.

12.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.

13.In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 62 – 73 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

14.Furthermore, the fact is that it has also been established by both the Director and the Board in their respective decisions that the risk of harm in his claim even 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.                

15.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.

16.Moreover, the Applicant recently on 4 October 2024 filed an affirmation requesting to withdraw his application as his problem has been solved that it is now safe for him to return to his home country.

17.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 that it is safe for him to return to his home country, I accordingly dismiss his leave application.

Dated the 5^th day of December 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