CHARAN KAMAL v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION AND ANOTHER

HCAL 85/2018

[2019] HKCFI 818

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 85 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 45-year-old national of India who entered Hong Kong illegally on 4 October 2010 and was arrested by police on the same day.  After he was referred to the Immigration Department for investigation, he lodged a torture claim on the basis that if he returned to India he would be harmed or killed by the sons of his neighbor over a land dispute.  He has since been released on recognizance pending the determination of his claim.

2.  The applicant was born and raised in Village Bajrawar, District Hoshiarpur, Punjab, India where his maternal grandfather owned a piece of land in the village coveted by his neighbor Baksish which had led to a long running feud between the two families.  After leaving school he worked in various odd jobs in India before going to Dubai in 2007 to work as a carpenter.

3.  Prior to his departure for Dubai his maternal grandfather passed away and his mother being the only descendant therefore inherited the land from him.  Later when she also passed away and when the applicant returned from Dubai in 2009, he inherited the land from his mother.

4.  By then Baksish had also passed away, and two weeks after his return to India, the applicant was invited by his four sons to their home for discussion over his land, during which they threatened to kill him if he insisted to dispute their claim over the land.  Upon hearing their threats the applicant immediately left to return to his home.

5.  Shortly thereafter while he was riding his motor bike he was ambushed by Baksish’s sons but managed to escape unharmed.  On another occasion while he was on his motor bike to visit his friend in the neighboring village, he was again ambushed by a group of men with their faces covered and with weapons but again he managed to escape on his bike and fled to hide in his friend’s place.

6.  On the following morning he went to his sister’s place in Hoshiarpur where he stayed for a week before moving to another friend’s place in Kullu for a month.  He then travelled to Manali where he stayed for two weeks, but when he heard that the Baksish family was looking for him there, he then fled to Dalhousie to hide in another friend’s place, but when he decided that he could not run forever as it was no longer safe for him to remain in India, he departed in mid-2010 for China, and from there he later sneaked into Hong Kong in October 2010, and upon his arrest he raised his torture claim which was later taken as a non- refoulement claim, for which he completed a Non-refoulement Claim Form on 24 October 2015 and attended screening interview before the Immigration department with legal representation from the Duty Lawyer Service.

7.  By a Notice of Decision dated 19 May 2016 the Director of Immigration (“the Director”) rejected the applicant’s claim on all then 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 (“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”).

8.  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 Baksisk’s sons upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that his problem with the Baksish family is a private land dispute without any official involvement that state or police protection would be available to him 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 work experience to move to other part of India away from his home district in large cities such as Butti, Hoshiarpur, Kullu, Manali or New Delhi where it would be difficult if not impossible for Baksish’s sons to locate him.

9.  By a Notice of Further Decision dated 17 August 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”).

10.  By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 2 June 2016, and for which he attended an oral hearing on 3 November 2017 before the Board during which he confirmed to the adjudicator that he had never been subjected to any physical harm from Baksish’s sons, and that it was his intention to look for work in China and only came to Hong Kong when he was unable to find any job in China. On 22 December 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

11.  In its decision the Board found serious contradictions in the applicant’s evidence, that it seriously doubted his claimed intention of seeking non-refoulement protection in Hong Kong, and that in any event he can always relocate to other part of India away from his home district to establish himself in large cities such as Kullu, Manali or Dalhousie where he had stayed before without incidents and where it would be difficult if not impossible for Baksish’s sons to locate him if indeed there would still be any reason for them to do so, as their only interest in him is over his land in his home village which he has left unoccupied since his departure.

12.  On 18 January 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 put forward the following grounds for his intended challenge:

  (1)  misdirection in law that the Director and the adjudicator misdirected himself on the law by taking into account that the applicant had to have experienced torture in the past in order to establish substantial grounds to believe that there was a risk of torture in the future;

  (2)  procedural impropriety/unfairness in the failure of the Director and the adjudicator to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of his claim;

  (3)  irrationality in the failure of the Director and the adjudicator to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of his claim;

  (4)  irrationality in the failure of the Director and the adjudicator to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in India;

  (5)  irrationality in the failure of the Director and the adjudicator to analyze and assess whether state protection exists in India and misdirected themselves as to the extended meaning of state protection;

  (6)  irrationality in their decisions for taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts resulting in a decision that was not Wednesbury reasonable;

  (7)  procedural impropriety in the Director’s assessment of the applicant’s claim without providing notice in advance of the screening interview which was unfair to him;

  (8)  irrationality in that the Director took into account or put weight in irrelevant information and in applying the incorrect standard of proof in the decision;

  (9)  procedural impropriety in failure to call for psychological and psychiatric evaluations and reports at any stage of screening by his assigned lawyer resulting in an unfair procedure; and

  (10)  procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the applicant resulting in unfair procedure.  

13.  These are however all just broad and vague assertions of the applicant containing several pages of 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 did they fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy was pattern of mass violation of human rights in India to his claim, or why it was necessary or relevant to call for psychological or psychiatric evaluations in his case, or in what way was his legal representation from his assigned lawyer insufficient.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant, and in the absence of any legal error or procedural unfairness in their decisions being clearly and properly identified by the applicant, I do not find any of these grounds reasonably arguable for his intended challenge.

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 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