KOLANCHIYAPPA PRASATH v. TORTURE CLAIMS APPEAL BOARD

HCAL 241/2017

[2023] HKCFI 2720

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 241 OF 2017

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;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 31-year-old national of India who last arrived in Hong Kong on 26 April 2014 as a visitor with permission to remain as such up to 29 April 2014 when he did not depart and on 30 April 2014 he was arrested by the police for overstaying. 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 paternal uncles over their land dispute in their home village. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Nettalakurichi Village, Udaiyarpalayam Taluka City, Ariyalur District, Tamil Nadu State, India. After obtaining a diploma at a teacher training school, the Applicant did not engage in any employment. The Applicant was single and lived with his family in his village in a big house together with a piece of farmland of which the Applicant’s was driven out after his father’s death in 2003. Since then the Applicant’s two uncles used the house and the land for themselves despite the Applicant’s family’s disagreement and disputes erupted between the 3 families on multiple occasions.

3.  In 2011, a court order was made in India stating that the house and the land should be shared by the Applicant and his two uncles, who disagreed the Applicant should have any entitlement to the house and the land at all.

4.  One day in 2013, the Applicant visited the house with the intention to confront his 2 uncles for cutting down and selling the trees from the land but he was attacked by one of his 2 uncles with metal rod and threatened to kill the Applicant if he ever set foot in the village again. The Applicant suffered cuts and bruises on his forehead and forearm which took 2 months to heal.

5.  After the assault the Applicant became fearful for his life, and upon suggestion by his mother 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”) on 9 September 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 8 January 2016 the Director of Immigration (“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 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 the Applicant’s 2 uncles upon his return to India as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there was no evidence of any real intention of his 2 uncles to seriously harm or kill him, that it was in any event a private land dispute between them 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 working experience to move to other areas of the country away from his home district in large cities such as Mumbai where it would be difficult if not impossible for his 2 uncles to locate him.

8.  On 19 January 2016 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 25 October 2016 before the Board but elected not to give any further evidence or to answer questions raised of his claim by the Adjudicator for the Board. On 3 April 2017 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board found no reliable evidence to suggest any real risk of harm from the Applicant’s 2 uncles, that his claim of risks of harm did not attain the minimum level of severity under any of the applicable risks due to the low frequency or duration or severity of past ill-treatments from them, and that state protection was available that the Board did not accept that there is any real chance that the Applicant will be harmed should he return to India, and that in any event it was a private land dispute between the Applicant and his 2 uncles without any official involvement that state or police protection would be available to the Applicant upon his return to India that his claim failed on all applicable grounds.

10.  Meanwhile on 29 March 2017 the Director on his own initiative in writing invited the Applicant to submit any 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”), and in the absence of any response from him, the Director by a Notice of Further Decision dated 19 April 2017 also rejected the Applicant’s BOR 2 Claim upon finding that he had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR including right to life under BOR 2 being violated upon his return to India.

11.  The Applicant did not lodge any appeal to the Board against this further decision of the Director, and on 26 May 2017 he filed a 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 various complaints or grounds for his intended challenge, of which can be summarized as follows:

(1)  Illegality/error or misdirection in law: the Board committed errors of law and misdirected in law in dismissing the appeal and rejecting his non-refoulement claim respectively;

(2)  Error/misdirection on the nature of the appeal:

(1)  the Board committed an error of law in that it failed to treat the appeal as a rehearing of his entire case and matters determined by the Director;

(2)  the Board failed to inquire into and make its own independent assessment on the country conditions of India which was relevant to his non-refoulement claim;

(3)  the Board failed to consider the presence of active or passive state acquiescence in India that state protection was not available to him;

(3)  Procedural Impropriety: the Board failed to provide sufficient opportunity to clarify certain elements of his claim and failed to conduct sufficient inquiry of the COI of India; and

(4)  Irrationality: the Board concluded his claim on an insufficient basis.

12.  These are however all just broad and vague assertions of the Applicant 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 or misdirected the law in the decision, or in what way did the Adjudicator fail to consider the active or passive state acquiescence or why state acquiescence was relevant to his claim or in what way did the Adjudicator fail to conduct proper inquiries into relevant COI. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for his intended challenge.

13.  As for his complaint under Ground (3) of not being given the opportunity to clarify certain elements of his claim, not only did the Applicant fail to point out the particulars of the elements on which he wishes to clarify, it is clearly factually incorrect as according to the Board decision it was the Applicant’s own volition not to give further evidence at the hearing. As such and in the absence of how the Applicant might have been so prejudiced, and when given the another opportunity when the Director requested further information to consider whether his claim engage the BOR 2 ground, he failed to give any response. Further, the Applicant did not take the opportunity to elaborated or clarify his claim at the hearing before me. I do not find this complaint of the Applicant reasonably arguable for his intended challenge either.

14.  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.

15.  In the Applicant’s case, 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 real 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.

16.  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.

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