DINESH KUMAR v. TORTURE CLAIMS APPEAL BOARD

HCAL 292/2018

[2020] HKCFI 282

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 292 of 2018

 Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 40-year-old national of India who arrived in Hong Kong on 10 April 2006 with permission to remain as a visitor up to 19 August 2006 as extended when he did not depart and instead overstayed until he was arrested by police on 12 April 2007.  After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to India he would be harmed or killed by his disgruntled customers after his business partner had absconded with their money,and when his torture claim was rejected by the Immigration Department, he then raised a non-refoulement claim for protection on the same basis and was released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Sansarpur near Jalandhar, Punjab,India.  After leaving school he ran a travel agency business with a partner including selling air tickets for various airlines to his customers.

3.  One day in October 2005 his partner had absconded with all the money in the business accounts including money deposited by their customers for purchasing air tickets for their trips and disappeared without a trace.

4.  After the police had regarded the matter as a private business dispute between him and his partner and refused to help, and when he was unable to repay his customers who then made death threats against him for their losses, the Applicant felt it was no longer safe to remain in India, and so he first fled to Mumbai, and from there he departed India for Thailand in January 2006 and eventually to Hong Kong where he overstayed, and upon his arrest by the police he raised his torture claim, and after it was rejected by the Immigration Department on 30 January 2014, he then lodged a non-refoulement claim for protection,for which he completed a Supplementary Claim Form on 8 February 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.  By a Notice of Decision dated 18 April 2017 the Director of Immigration (“the Director”) rejected the Applicant’s claim on the remaining applicable grounds other than torture claim including risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights (“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”).

6.  In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real risk of him being harmed or killed by his disgruntled customers upon his return to India due to the low intensity and frequency of past ill-treatment from them, that his problems with them were private monetary dispute 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 2.9 million square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with work experience to move to other part of India away from his home district in large cities such as Kolkata or Mumbai where it would be difficult if not impossible for those disgruntled customers of his former business to locate him.

7.  On 28 April 2017 the Applicant filed an appeal to the Torture Claims Appeal Board(“the Board”) against the Director’s decision, and for which he attended an oral hearing on 18 August 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 6 December 2017 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.  In its decision the Board found the reason given for the ill-treatment the Applicant claimed to have suffered is non-payment of his partner’s debts which is a private dispute without any official involvement that both state/police protection and reasonable internal relocation alternatives are available for the Applicant to safely return to other part of India such as Kolkata or Mumbai that his non-refoulement claim for protection failed on all applicable grounds. 

9.  On 23 February 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given either in his Form or in his supporting affirmation of the same date to which he merely attached a copy of the Board’s decision.  In the absence of any error of law or procedure in the process of his appeal before the Board or in its decision being identified by the Applicant, I do not find any reasonably arguable ground or basis to challenge the finding of the Board or any realistic prospect of success in his intended application.  

10.  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 an applicant to present and articulate his claim is in the screening process and interview before the Immigration Department or 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. 

11.  Furthermore, the fact that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim 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.

12.  In the premises and 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.

13.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.

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