SUMEET KUMAR v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 517/2018

[2020] HKCFI 1915

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 517 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 14 December 2017 refused; and

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

Observations for the Applicant:

1.  The Applicant is a 31-year-old national of India who last arrived in Hong Kong on 18 September 2014 with permission to remain as a visitor up to 2 October 2014 when he did not depart and instead overstayed.  On 9 October 2014 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 family and the Hindu community for his homosexual orientation and/or prosecuted by police as it was a criminal offence to engage in homosexual activities in India.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in a Hindu family in Village Shehzadpur, Samba, Jammu and Kashmir, India.  After leaving school he worked as a waiter in a hotel in Dal Lake Srinagar which provided him with living quarter, and where he was said to have started a homosexual relationship with his hotel manager Leo in about 2013 but which he had kept as a secret from his family.

3.  However, in June 2014 their relationship was discovered by his younger brother who was able to access his Facebook account and saw pictures of him with Leo, and so the Applicant was told to return home where he was severely reprimanded by his father who slapped him on the face and demanded that he ceased his relationship with Leo immediately or else he would kill him for dishonouring the family, or that he would be killed by the Hindu villagers who would not tolerate such behavior in their community.

4.  When the Applicant told Leo that his family wanted him to end their relationship, Leo suggested that they should go to Goa where nobody knew them and that they could continue to be with each other, and so they went and found a job there where they also rented an apartment to live together.

5.  However, there Leo started to act abusively towards the Applicant, and during their many arguments Leo would even hit him by punching and kicking him, and when the Applicant suggested to end their relationship, Leo would threaten to expose their homosexual relationship through his Facebook account.

6.  Eventually the Applicant found the stress and fear of living with Leo intolerable, and decided to end the relationship in end of August 2014 when he left Goa by himself for Delhi, but when he heard that Leo was looking for him everywhere, he departed India on 18 September 2014 for Hong Kong where he overstayed, and later when he surrendered to the Immigration Department, he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 14 November 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.  Whilst being released on recognizance pending determination of his claim, the Applicant was arrested by police on three separate occasions for theft, and for which he was convicted and penalized with a fine or imprisonment on each occasion.       

8.  By a Notice of Decision dated 28 December 2016 the Director of Immigration (“the 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”).

9.  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 that he feared upon his return to India as low due to the absence of or low intensity and frequency of past ill-treatment from his family, that there is no evidence at all of any threats from the local Hindu community against him or that they were even aware of his homosexual orientation, that despite the existence of penal code against homosexual activities in India, the latest Country of Origin Information (“COI”) show that nowadays it was seldom enforced in large cities where LGBT movements were more tolerated and supported by recent decisions of the Supreme Court that there would not be any real risk of him being prosecuted, and that COI also 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 young adult with working experience to move to other part of India away from his home district in large cities such as Mumbai or Delhi where he had stayed before without incidents and where LGBT rights are respected or accepted without any real risk of harm or persecution against him.

10.  On 11 January 2017 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 17 October 2017 before the Board with legal representation from DLS during which he gave evidence and answered questions put to him by the adjudicator for the Board and with submissions made on his behalf by his lawyer.  On 14 December 2017 his appeal was dismissed by the Board which also confirmed the decision of the Director.

11.  In its decision the Board found such serious conflicts and inconsistencies in the Applicant’s evidence which changed fundamentally over time that those given by him at his appeal hearing profoundly undermined his claims both to identify as a homosexual man and to have entered into a de facto relationship with Leo as unbelievable that he was not considered as a witness of truth, and that it did not accept that he had ever engaged in homosexual activities or identified with homosexual men in the past, or that he faces any real risk of being subjected to proscribed harm due to his alleged sexual orientation should he return to India in the reasonably foreseeable future that his claim for non-refoulement protection failed on all applicable grounds.

12.  On 29 March 2018 the Applicant filed his Form 86 (dated 22 February 2018) for leave to apply for judicial review of both the decisions of the Director and the Board, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1) that the adjudicator took a long time asking many questions which confused the Applicant and did not allow him to go to the washroom for a short break;

(2) that the Applicant feared that he would be blackmailed by his former sexual partner to report him to the police for having engaged in homosexual activities; and

(3) that the Applicant was unable to provide the evidence regarding his case as his girlfriend was pregnant and he did not want to leave her in Hong Kong to get evidence.  

13.  However, the Applicant was by then also out of time with his application, 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.

14.  As the last day of the three-month period for him to file his Form 86 fell on 14 March 2018, the Applicant was therefore about two weeks late with his application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration [2016] 2 HKC 393.

15.  In the Applicant’s case, a delay of 2 weeks may not be regarded as substantial or excessive, for which he however did not provide any explanation, and as the record shows that the decision was sent on the same day to his lawyer from DLS, I am not satisfied that he has provided any valid explanation for his albeit insubstantial delay, but I propose to focus on the merit, if any of his intended application.  

16.  His complaints under Grounds (2) or (3) as stated above however cannot be accepted as any valid or proper grounds as they are wholly irrelevant to either his process before the Board or to its decision, and as such they are simply not arguable at all for his intended challenge.

17.  As for his complaint under Ground (1) of being confused by the lengthy questioning by the adjudicator and that he was not even allowed to take any break or to go to the washroom, I note first that the Applicant was represented by his lawyer from DLS throughout his entire hearing before the Board during which no such complaint by him or his lawyer had ever been noted or recorded in the Board’s decision.

18.  In fact, much to the contrary, it seems that the Applicant had actually taken far longer breaks during his hearing before the Board, as it is recorded in paragraph 5 of the Board’s decision as follows:

“ A Notice of Hearing was sent to the Appellant on 26 June 2017 and he appeared in person before the Board on 17 October 2017 assisted by a Hindi interpreter and was legally represented by Mr Charles Chan of the Duty Lawyer Scheme. The Appellant indicated to the Board that he had no difficulties with the quality of interpretation. At the commencement of the hearing the Board explained its role and the purpose of the hearing, and outlined the criteria against which it would be assessing the Appellant’s claims. The Board drew the Appellant’s attention to the documents contained in the Hearing Bundle, indicating that it would take those documents into account together with his oral evidence at hearing and all other relevant materials before it at the time that it made its decision, emphasising that everything that he said needed to be true and correct. The Appellant indicated that he understood this and swore an affirmation to tell the truth. On two occasions when the Board adjourned proceedings, the Appellant failed to appear at the scheduled time. When asked why he failed to appear for almost an hour after proceedings were scheduled to resume after rising for lunch and why he failed to notify his counsel, the liaison officer or the Board that he would be late or answer the nine telephone calls made to him to ascertain his whereabouts, the Appellant claimed to felt dizzy and put his telephone on silent.”

19.  This clearly contradict the Applicant’s complaint of not being given any break during his appeal hearing before the Board, which included a lunch break that lasted an hour longer than originally scheduled.  As such and in the premises, I do not find any truth or merit in this complaint of the Applicant either.       

20.  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.

21.  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 38 – 58 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.  

22.  Furthermore, the fact that it has been established by the Director in his 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.

23.  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.

24.  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 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