JOSEPH JEROME v. THE DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 853/2018

[2020] HKCFI 189

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 853 of 2018

     Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

1.  extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 22 December 2016 refused; and

2.  the application for leave to apply for Judicial Review dismissed.

Observations for the Applicant:

1.   The Applicant is a 50-year-old national of India who arrived in Hong Kong on 3 June 2013 with permission to remain as a visitor up to 17 June 2013 when he did not depart and instead overstayed and was arrested by police on 15 July 2013.  After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as 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 loan.  He was subsequently released on recognizance pending the determination of his claim.

2.   The Applicant was born and raised in Kochuveli, Trivandrum, Kerala, India.  After leaving school he worked as a welder in various places including Dubai and as a storekeeper in Chad before returning in 2009 to his home village in India where he got married and raised a family with 2 children.

3.  In 2012 he started a garment business with a loan from a local loan shark with monthly interest payment at 4% on the principal sum until its full repayment.

4.  With the profits from his business, the Applicant was able to make his monthly interest payment to the loan shark without problem, but when his business subsequently went down in late 2012, and when he was unable to make any interest payment, he was demanded by the loan shark to repay his loan within one month.

5.  One month later one day in March 2013, while the Applicant was away from home, the loan shark came with his men to his home looking for him for the repayment of his loan, and when they could only find his wife and children at home, they pushed his wife to the ground and threw and broke things in the house, and before they left, the loan shark warned his wife that they would kill the Applicant if his loan was not repaid as soon as possible.

6.  Upon returning home the Applicant reported the matter to the police, but when no action or investigation was taken as the Applicant suspected that they were under the influence of the loan shark, he was advised by his family to stay away from his home village by taking shelter with his relatives in neighbouring town in Kochuveli, but when he later heard that the loan shark and his men were looking for him everywhere, he decided that it was no longer safe to remain in India, and so on 30 May 2013 he departed for Malaysia, and from there he travelled to Hong Kong where he overstayed, and upon his arrest by the police he raised his torture claim later taken by the Immigration Department as a non-refoulement claim for protection, for which he completed a Supplementary Claim Form on 1 August 2014 and attended screening interview before the Immigration Department with legal representation form the Duty Lawyer Service.

7.  By a Notice of Decision dated 22 October 2014 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 of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his creditor or his men upon his return to India as low due to the absence or low intensity and frequency of past ill-treatment from them, that it was a personal monetary 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 part of India away from his home district in large cities such as Chennai where he could safe re-establish himself and where it would be difficult if not impossible for his creditor to locate him.

9.  On 31 October 2014 the Applicant 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 15 June 2015 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 22 December 2016 his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  In its decision the Board took issue with the credibility of the Applicant regarding his claim of fleeing India due to threats from his creditor, and found in any event that without any state involvement and with reasonable internal relocation within India that it would be safe for him to relocate elsewhere in India away from his home locality where it would be difficult if not impossible for his creditor to locate him that his claim for non-refoulement protection failed on all applicable grounds.       

11.  On 15 March 2017 the Director on its own initiative invited in writing to the Applicant to submit additional facts which he may consider relevant to his non‑refoulement claim on other absolute and non-derogable rights under the Hong Kong Bill of Rights including right to life under Article 2 (“BOR 2 risk”).

12.  In the absence of any response from the Applicant, the Director by a Notice of Further Decision dated 30 March 2017 found that the Applicant had failed to establish any personal or real risk of his absolute and non-derogable rights under HKBOR including right to life under BOR 2 risk being violated upon his return to India, and rejected his claim under BOR 2 risk.

13.  On 16 May 2017 the Applicant again lodged an appeal to the Board against the Director’s Further Decision, of which the Board found to have been filed out of time but allowed him an extension, but the Board did not schedule any oral hearing and instead proceeded to deal with the appeal on papers in the absence of the Applicant.  On 19 April 2018 the appeal was again dismissed by the Board upon finding that the Applicant had failed to establish his claim under BOR 2 risk which was in any event not engaged given the nature of his claim, and the Further Decision of the Director was confirmed.

14.  On 16 May 2018 the Applicant filed his Form 86 for leave to apply for judicial review, but instead of that more recent further decisions regarding his BOR 2 claim, he specifically stated that it was of both the earlier decision of the Director dated 22 October 2014 and of the Board dated 22 December 2016, and put forward the following grounds for his intended challenge:

(1)      that the Director failed to appreciate or give proper importance or weight to the presence of state acquiescence in the Applicant’s case which led to an unfair outcome of rejecting his non-refoulement claim as well as his appeal;

(2)      that the Director failed to accept the argument that the Applicant was tortured at the behest of and in full collusion of the police and the state law enforcement agencies that state should be rendered liable to the Applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(3)      that the Director failed to consider or give proper weight to those relevant COI which supported the Applicant’s aversions that police in India would not be able to protect and instead ruled otherwise against the Applicant’s case;

(4)      that the Director only relied on COI which suited his pre-conceived conclusion which is a clear case of unfair attitude shown towards the Applicant’s case;

(5)      that the Director failed to recognize that the corruption and incompetency of the administration in India is still a very serious problem as supported by the reports of various human rights organizations which stated testament to the Applicant’s assertions;

(6)      that the Director failed to attain the high standard of fairness required by the Wednesbury test in his decision which should be considered as unreasonable in the scope of public law;

(7)      that the Adjudicator failed to make sufficient enquiry of the Applicant’s case before finalizing the determination; and

(8)      that the Adjudicator failed to give sufficient chance to the Applicant to arrange relevant evidence for his non-refoulement claim as well as his appeal.  

15.  By then the Applicant was seriously out of time with his intended application regarding either decision of the Director or of the Board, as Order 53 Rule 4(1) of the High Court Ordinance, Cap 4 requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

16.  As the last day of the three-month period for the Applicant to file his Form 86 for judicial review of the Board’s decision of 22 December 2016 fell on 22 March 2017, not to mention the even earlier decision of the Director, hence he was almost 14 months late with his intended application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: see Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration [2016] 2 HKC 393.

17.  In the Applicant’s case, a delay of almost 14 months must be considered as very substantial or excessive, for which he did not provide any explanation, and as such I am not satisfied that he has had any valid reason for his such serious delay.    

18.  As for the merits of his intended challenge, most of his proposed grounds are either not relevant to his claim or are just broad and vague assertions of his 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 decision, or in what way was state acquiescence relevant to his case, or how did the Director or the Adjudicator hail to make sufficient enquiry about his case of fail to apply high standards of fairness in assessing his claim, or how did they fail to properly assess and rely on the relevant COI in assessing the situation in India, or how did the Adjudicator fail to give him sufficient opportunity to adduce evidence in support of his claim or his appeal when he never raised any such issue during his appeal hearing before the Board. 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.

19.  As has been repeatedly emphasized by the Court of Appeal, 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.

20.  As already noted above, as I do not find any of the Applicant’s proposed grounds reasonably arguable, and in the absence of any error of law or procedural unfairness in his process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the findings of either the Director or the Board.  

21.  Furthermore, the fact is 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.     

22.  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.

23.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his serious delay, I refuse to extend time and 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