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HCAL 1242/2018
[2021] HKCFI 1089
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1242 of 2018
BETWEEN
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Sathaiah Subbaiah |
Applicant |
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Torture Claims Appeal Board |
Putative Respondent |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)
Following:
Order by Deputy High Court Judge Bruno Chan:
Leave to apply for judicial review refused.
Observations for the Applicant:
1. The Applicant is a 46-year-old national of India who arrived in Hong Kong on 30 October 2014 with permission to remain as a visitor up to 13 November 2014 when he did not depart and instead overstayed and surrendered to the police on 17 November 2014. 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 rioting supporters of rival political parties. He was subsequently released on recognizance pending the determination of his claim.
2. The Applicant was born and raised in Arumuga Nagar, Thanthai Periyar Nagar, Karaikudi, Sivagangai District, Tamil Nadu, India. After leaving school he got married and raised a family with 2 children, became a supporter of the political party All India Anna Dravida Munnetra Kazhagam (ADMK”), and worked as a driver for one of their leaders.
3. One day in October 2014 while he was driving his employer on their way to Banglore, they ran into a riot between supporters of rival political parties ADMK and Dravida Munnetra Kazhagam (“DMK”) when the mobs stopped their car and threw stones at them that they had to leave their car and fled from the scene.
4. The riots then spread to the Applicant’s home district in Karaikudi where the mobs would set fire to buildings, vandalized properties and attacked people on the street that the Applicant felt that it was no longer safe to remain in India, and so he sent his family to stay with his in-laws in Puthukottaj City, and on 29 October 2014 he departed India for Hong Kong where he subsequently overstayed, and upon his surrender to the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 3 July 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).
5. By a Notice of Decision dated 31 July 2017 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”).
6. 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 rioting supporters between rival political parties 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 is no evidence that he had been specifically targeted by them and that it was just a random situation that he by chance ran into the riot on only one occasion, that there is no evidence that such risk still exists today in India and that his claimed fear of harm arising from any riot is just based on his own speculation, that in the absence of 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 part of India away from his home district in large cities such as Delhi where it would be difficult if not impossible for his perceived enemies to locate him.
7. On 8 August 2017 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 8 March 2018 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 22 June 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 having encountered incidents of riots in his home country that caused him concern for his safety but found no evidence that he had been specifically targeted by any rioter for harm for political reasons that it concluded that it would be safe for him to return to India and if necessary to other area away from his home district without any risk of any harm from anyone that his claim for non-refoulement protection failed on all applicable grounds.
9. On 3 July 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely repeated his claim that he cannot yet go back to his home country as his life would still be in danger there but without putting forward the following grounds for his intended challenge, nor did he request any oral hearing for his application. As such and in the absence of any procedural unfairness in his process before the Board or any error of law or irrationality in the Board’s decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.
10. 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.
11. In the Applicant’s case, 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 his 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.
12. 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.
13. 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.
Dated the 22nd day of April 2021.
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(LEE Chun-wa Allen)
for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or his solicitors must: |
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). |
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Sent to the Applicant on 22nd April 2021
Sathaiah Subbaiah
Applicant’s ref. no.:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 22nd April 2021
Torture Claims Appeal Board
Putative Respondent’s ref. no.:
USM 8073/17/8/111/IN1539
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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