VIJAYAKUMARA RAJA VISHNUSANKAR v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1170/2019

[2023] HKCFI 2962

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1170 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 22 February 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office on the BOR 2 risk (“the Board’s Second Decision”). There is another decision of the Board dated 3 November 2015 on the Torture risk, the BOR 3 risk and the Persecution risk (“the Board’s First Decision”) Since the facts for the Board’s Second Decision are the same facts for the Board’s First Decision, the Board had also taken into account of its First Decision in making its Second Decision.

2.  The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with his application on paper.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (“the Director”) is the interested party.

The applicant

4.  The applicant is a national of India. He entered Hong Kong as a visitor on 21 October 2006 and was permitted to stay until 4 November 2006. However, he did not depart and had overstayed since 5 November 2006. On 2 April 2007, he was arrested by the police for overstaying. On 8 April 2007, he raised a torture claim. Upon the commencement of the unified screening mechanism, his torture claim was taken as a non-refoulement claim and was assessed on all applicable grounds. He claimed that, if refouled, he would be harmed or killed by the members of Diravida Munetra Kalazam (“DMK”).

5.  According to the applicant, he was in the opposition party of DMK named Anna Diravida Munetra Kalazam (“ADMK”) since 2001. One or two years later, he was appointed by Rajan, the top leader in his locality, as the youth leader. Members of the DMK often disturb the meetings held by the ADMK. They also made phone calls of threats to the applicant. In 2004, the DMK came into power. A year later, the applicant was appointed as the president of the young troop of ADMK.

6.  After his appointment, the applicant had encountered two incidents. In the first incident, some attackers threw big stones at him. He also received phone calls of threats from anonymous numbers after he escaped to Cochin. In around February 2005, as there was a town election inside his party, he was advised by Rajan to participate.

7.  One week before the election, the applicant was attacked again. This time, he suspected that the attackers were from his own party due to his nomination in the town election. Out of fear, the applicant escaped to Chenai. Subsequently, he went to work in Singapore.

8.  On 11 August 2015, he left Singapore and went to Bombay. Around five or six months later, he contacted his parents who told him not to return. Eventually, the applicant fled to Hong Kong for protection. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 10 November 2014 by the Director (the “Director’s First Decision”).

The Director’s Decisions

9.  The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

10.  By way of the Director’s First Decision, the Director dismissed the applicant’s claim on the grounds of Torture risk, Persecution risk and BOR 3 risk. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [12]-[15]; (ii) state protection would be available to him [16]; and (iii) internal relocation was a viable option [17]-[19].

11.  For reasons set out in the Notice of Further Decision dated 19 January 2017, the Director also refused to accept that the applicant’s right to life would be violated and thus dismissed his claim on BOR 2 risk (the “Director’s Second Decision”).

The Board’s Decisions

12.  The applicant first appealed the Director’s First Decision to the Board. On 9 June 2015, the Board conducted an oral hearing for his appeal.

13.  Having considered the applicant’s claim [14], the Board made the following findings. In particular, it found that the applicant’s evidence on the attacks implausible [15]-[16]; that it was unreasonable that the applicant was picked as an adverse target by the DMK members since he was a low rank member and ceased to participate in the party’s events in February 2005 [17]-[18]; that he remained safe until 2006 before he left for Hong Kong [19]; and that he still returned to India after Singapore [20].

14.  As a result, the Board found that the applicant’s claim was not substantiated and dismissed his appeal against the Director’s First Decision (the Board’s First Decision”).

15.  On 2 February 2017, the applicant filed a notice of appeal/petition against the Director’s Second Decision. In his grounds of appeal/petition, he stated that he did not understand the dismissals and he needed legal representation [6]. As he did not produce any additional information, the Board decided not to hold an oral hearing and determined the applicant’s appeal on papers [7].

16.  Having considered the available information, the Board found that there was no evidence to establish the applicant’s claim on BOR 2 risk. Therefore, the applicant’s appeal against the Director’s Second Decision was also dismissed by the Board’s Second Decision [11]-[14].

Application for leave to apply for judicial review of the Board’s Decision

17.  The applicant has filed Form 86 on 2 May 2019 for leave to apply for judicial review of the Board’s Decision.

18.  In his affirmation in support of his application, the applicant did not raise any specific ground.

DISCUSSION

19.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

20.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

21.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

22.  The Board had taken into account of the factual issues in the Director’s First Decision when it considered the applicant’s appeal against the Director’s Second Decision. The Board, for the reasons stated in its Second Decision, found that the applicant will not be subjected to the claimed risks if he returns to India. The applicant has not been able to raise any valid reason to challenge the Board’s Second Decision.

23.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

24.  I refuse to grant leave for the applicant to apply for judicial review of the Board’s Second Decision. Accordingly, I dismiss his 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