SAINI VIKAS v. TORTURE CLAIMS APPEAL BOARD

HCAL 854/2020

[2023] HKCFI 2167

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 854 OF 2020

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 / the Applicant being absent in open court;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 30-year-old national of India who arrived in Hong Kong on 20 April 2016 as a visitor with permission to remain as such up to 4 May 2016 when he did not depart and instead overstayed, and on 6 May 2016 he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his girlfriend’s family who opposed their relationship. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Ballah, District Karnal, Haryana, India. While at school he met his girlfriend as a fellow student from a wealthy family in a neighbouring village, and soon started dating each other.

3.  However, due to the different castes between their 2 families, his girlfriend’s parents objected to their relationship, and after one incident in 2013 when the Applicant was threatened and beaten by her brother, her parents then sent her away to study in another city, and for the next 2 years the Applicant had no further contact with his girlfriend.

4.  In 2015 the Applicant was contacted by his girlfriend who had finished her studies and returned to her home, and that she wanted to meet up again, and so they resumed their relationship, but which was again opposed by her parents, and after 2 further incidents in 2016 when the Applicant was attacked by her brother, and on the second one when her brother fired a gun shot at him but missed, the Applicant became fearful for his life and fled to hide in his uncle’s place in Delhi.

5.  However, later he was advised by his parents that his girlfriend’s family were still looking for him everywhere and that he should leave the country to save his life, and so on 19 April 2016 the Applicant 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 26 March 2018 and attended screening interview before the Immigration Department with legal representation.

6.  By a Notice of Decision dated 20 April 2018 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 his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“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”).

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 girlfriend’s family upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill him other than to deter him from continuing with his relationship with his girlfriend, that in any event it was a private relationship 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 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 areas of the country away from his home district in large cities such as Kolkata or Mumbai where it would be difficult if not impossible for his girlfriend’s family to locate him.

8.  On 26 April 2018 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 10 January 2020 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 20 April 2020 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted his claims of having a girlfriend in his home district which was opposed by her family or that he had been so threatened and attacked as a result or that he had such fear of harm from anyone that caused him to leave his home country to come to Hong Kong to seek protection, and concluded that he had fabricated his claims that it rejected his claim for non-refoulement protection which henceforth failed on all applicable grounds.

10.  On 8 May 2020 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge:

(1)  Irrationality in the Board’s failure to consider the concept of state acquiescence in the Applicant’s claim;

(2)  Procedural impropriety in that the Board failed to conduct sufficient inquiry in the assessment of the Applicant’s claim;

(3)  That the Board failed to provide adequate reasons as to its decision made;

(4)  Procedural impropriety/unfairness in failing to investigate into the COI of India;

(5)  Irrationality in failing to place weight on relevant information and/or selectively placing weight on irrelevant information;

(6)  Irrationality in failing to consider a consistent system of human rights violation in the Applicant’s home country;

(7)  Irrationality in failing to if state protection exists in India;

(8)  Procedural impropriety in failing to call for psychological and/or psychiatric reports and/or evaluation reports;

(9)  Procedural impropriety in applying the incorrect standard of proof;

(10)  That there was no reasonable basis for rejecting the credibility of the Applicant’s claim;

(11)  Failure to fully consider the risk in the Applicant’s claim;

(12)  Irregularity of the decision-maker being a different person than the immigration officer;

(13)  That there was no proper basis for consideration of internal relocation.

11.  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 in the decision, or in what way was the decision unfair or unreasonable, or how did the Adjudicator fail to make sufficient inquiry or to provide adequate reasons for decision or to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or why it was state acquiescence relevant to his claim or that it was necessary or relevant to call for psychological or psychiatric evaluations in his case, or in what way did the Board apply the standard of proof incorrectly. 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.

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 19 – 60 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.  The fact is that it has also 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.

15.  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.  Furthermore, the Applicant has recently filed an affirmation requesting to withdraw his application as he has at the present moment no problem returning to his home country as soon as possible.

17.  In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation of no longer any problem returning to his home country, I accordingly dismiss 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