VACA MINGYAO v. THE ADJUDICATOR OF THE NON-REFOULEMENT CLAIMS PETITION OFFICE APPOINTED TO DETERMINE THE APPLICANT’S PETITION AND ANOTHER

HCAL 481/2018

[2019] HKCFI 412

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 481 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 the Applicant being absent in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The applicant is a 41-year-old national of India who arrived in Hong Kong on 15 October 2007 when was arrested by police for drug trafficking, for which he was convicted and sentenced to 15 years’ imprisonment.  Upon release from prison and while he was detained by the Immigration Department pending deportation, he lodged a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by the people formerly involved in his drug trafficking activities and/or by the authorities in India for being involved in a terrorist group.  He has since been released on recognizance pending the determination of his claim.

2.  The applicant was born and raised in Village Shiroi, District Ukhrul, Manipur, India.  After leaving school he tried to join the army but was unsuccessful, and feeling discontent he joined the Nationalist Socialist Council of Nagaland (“NSCN”), a terrorist group operating in northern India, and also became involved in dealing and trafficking in illegal drugs in the area of Manipur.

3.  In 2007 he was asked by his associates to bring drugs into China via Hong Kong, and so on 14 October 2007 when he arrived in Hong Kong, he was arrested by police for drug trafficking and was put in prison.

4.  In about 2014 whilst in prison the applicant heard from his family that his wife had been murdered in India by some unknown men, and in 2015 he was told by his brother about a phone call from a man who told him to warn the applicant not to return to India or else he would be killed like they did to his wife, and that they would inform the government of his previous involvement with NSCN.  When the applicant became suspicious that the threat came from his former associate AM who blamed him for losing the drugs in Hong Kong and wanted to take revenge against him upon his return to India, he therefore upon release from prison in 2017 lodged a non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 26 August 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.  By a Notice of Decision dated 21 September 2017 the Director of Immigration (“the 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 (“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 assessed the level of risk of harm from AM or the Indian government upon his return to India as low due to the absence of any reliable or independent evidence of such risks other than just two phone calls which were hearsay, that the alleged warning from AM for the applicant not to return to India is contradictory to the applicant’s claim that he wanted to take revenge against him, that in the absence of any evidence of 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 Mumbai or Bangalore where it would be difficult if not impossible for AM to locate him.

7.  The applicant then lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 5 December 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 12 March 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.  In its decision the Board accepted the applicant’s claim of his previous involvements in NSCN and drugs trafficking activities in India, but found his fear of being harmed by AM to be just conjecture unsupported by any evidence and is inherently implausible, and did not accept that AM had murdered his wife in the absence of any evidence or that the Indian government would go after him given his limited role in NSCN restricted to financial support only years ago, and that in any event it would not be unreasonable for him to relocate to other part of India such as Mumbai without facing any risk or hardship.

9.  On 23 March 2018 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in it he put forward the following grounds for his intended challenge:

(1)  that the Director and the adjudicator reached their decisions wrongly in assessing his non-refoulement claim;

(2)  that their decisions were unfair and unreasonable as required by the Wednesbury test;

(3)  that they failed to take into consideration that right of life is protected from extra-judicial killings which he may face if he were deported to India; and

(4)  that the adjudicator failed to give him sufficient time and opportunity to arrange relevant evidence for his non-refoulement claim and his appeal.  

10.  Although in his application the applicant requested for an oral hearing, he did not appear at the scheduled hearing without any explanation, and as the notice of which was sent to his last reported address provided by him in his own hand writing to the Court and confirmed as correct by the Immigration Department, I do not see any justification to waste any further time to re-schedule another oral hearing for the applicant, and proceeded to deal with his application in his absence, and to consider the proposed grounds for his intended challenge.

11.  These grounds are however just broad and vague assertions of the applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the adjudicator had erred in their decisions, or in what way were their decision unfair or unreasonable, or what relevancy was extra-judicial killings to his claim, or how did the adjudicator fail to give him time or opportunity to provide evidence for his claim.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant, and even in his application now before me that he did not provide any further evidence for his claim.  In the premises I do not find any basis or merit in any of these complaints of the applicant.

12.  As has been repeatedly emphasized by the Court of Appeal, 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 those 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 Re Litoun Mounsy [2018] HKCA 537.

13.  In the applicant’s case the adjudicator had had the benefit of hearing him in evidence before setting out his very careful and comprehensive analysis and evaluation in full details from paragraph 38 to 82 of the Board’s decision, and having considered them with rigorous examination and anxious scrutiny I am unable to find any error in any of them. 

14.  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.

15.  In the premises and having proceeded to consider 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 or irrationality 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