DHAVASHI THEVAR SHANMUGAVEL v. TORTURE CLAIMS APPEAL BOARD

HCAL 1062/2018

[2021] HKCFI 1017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1062 of 2018

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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 48-year-old national of India who arrived in Hong Kong on 24 May 2014 with permission to remain as a visitor up to 31 May 2014 when he did not depart and instead overstayed and was arrested by police on 1 June 2014. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his creditor for failing to repay his business loans. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Ramnad DT, Tamil Nadu, India. After leaving school he worked aa a farmer and later as a driver, got married and raised a family with 3 children in his home village.

3.  In 2008 while working as a driver, he came across 3 businessmen who lived in the same village and who invited him to join their property development business, and so he invested his life savings on the partnership and became a partner in their business.

4.  In order to acquire capital for their business the Applicant and his partners therefore borrowed loans form a local wealthy businessman for the purpose of acquiring lands for development, but one day in October 2013 all his partners suddenly disappeared with all the money leaving the Applicant alone to face their creditor over their loans, and when he was unable to make any repayment, his creditor started to send men to threaten him and damaged his belongings.     

5.  After the Applicant was unable to get any help from the local police who treated the matter as a private monetary dispute between him and his creditor, and fearing for his life, the Applicant therefore departed India on 23 May 2014 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 8 December 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).         

6.  By a Notice of Decision dated 29 June 2016 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 torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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 assessed the level of risk of harm from his creditor and his men upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that his problem with his creditor was a 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 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 part of India away from his home district in large cities such as Delhi where it would be difficult if not impossible for his creditor to locate him.

8.  By a Notice of Further Decision dated 14 March 2017 the Director again rejected the Applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk”).

9.  By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“Board”) against the earlier decision of the Director, the notice of which was filed on 11 July 2016, and for which he attended an oral hearing on 28 March 2017 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 26 March 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.  In its decision the Board found such implausibility in the Applicant’s descriptions of the circumstances surrounding and events leading to him entering into his partnership with those 3 businessmen whom he knew very little about as well as the various property transactions which he claimed to have made with those loans were fundamentally implausible and incredible that it did not consider that the Applicant would face any real risk of suffering any of the proscribed harm should he return to India that his claim for non-refoulement protection failed on all applicable grounds.    

11.  On 11 June 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 in his Form, and in his supporting affirmation of the same date he merely stated that he was not happy with the decision and that his life would still be in danger in his home country but without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for his application. As such I do not find any reasonably arguable basis 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 42 – 59 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 been established by the Director in his decision that the risk of harm in the Applicant’s claim if true is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, a decision also confirmed by the Board, 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.  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.

16.  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