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HCAL 1068/2018
[2020] HKCFI 2658
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1068 of 2018
BETWEEN
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Maninder Kumar |
Applicant |
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and |
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Torture Claims Appeal Board |
1st Putative Respondent |
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Director of Immigration |
2nd 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 53-year-old national of India who arrived in Hong Kong on 2 May 2014, and when he was refused entry he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by local supporters of rival political party Shiromani Akali Dal (“SAD”) for refusing to join their party. He was subsequently released on recognizance pending the determination of his claim.
2. The Applicant was born and raised in Village Guna Chaur, District Nawan Shehar, Punjab, India. After leaving school he worked in various jobs, got married and raised a family of 2 children, and in 1996 he moved his family to Jalandhar City, Punjab where he worked as a security guard.
3. In 2014 he started to support the political party Aam Aadmi Party (“AAP”) regularly attended their activities in Jalandhar City, but one day in early 2014 during the general election, he was approached by some SAD supporters to join their party, but when he refused as he supported AAP, they were not pleased and left.
4. A few weeks later one evening in March 2014, the Applicant was attacked by a group of masked men near his home until they were intervened by his neighbours and left. The Applicant suffered some injuries to his limb, and although he could not see the face of his assailants, he suspected that they were the same group of SAD people who earlier tried to get him to join their party.
5. Several weeks later in late April 2014 some SAD people came to his home and demanded him to come out, but when he refused as he was afraid of further attacks, the men fired several shots with their guns at his house before they left.
6. After the incident the Applicant became fearful for his life, and as he felt it was no longer safe to remain in India, he therefore departed on 2 May 2014 for Hong Kong, and when he was refused entry he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 18 June 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.
7. By a Notice of Decision dated 24 July 2014 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 torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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 those local SAD supporters upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that it is doubtful that they would specifically target him for harm given that he was just a supporter with no official position in AAP, 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 his party AAP has since become the majority party in India while SAD is no longer influential or powerful as before, and that with reasonable internal relocation alternatives available in India with a large population of 1.2 billion people spread across a vast territory 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 those local SAD supporters to locate him.
9. By a Notice of Further Decision dated 8 May 2017 the Director again rejected the Applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).
10. By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 8 August 2014, and which was dealt with by the Board in the absence of the Applicant and on paper. On 8 May 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.
11. In its decision the Board accepted the Applicant’s case as claimed with no dispute on the facts raised by him or the law involved and hence not necessary to conduct any oral hearing, but found no evidence that the Applicant had been specifically targeted by the SAD people or that they would still have any adverse interest in him after all these years, and that in any event with reasonable internal relocation within India available for him to move safely to other area away from his home district without any risk of being located by those SAD people that his claim for non-refoulement protection failed on all applicable grounds.
12. On 11 June 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, 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 his life would be in danger in his home country but without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for his application. As such 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 for his intended challenge.
13. 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.
14. 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.
15. 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.
16. 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 29th day of December 2020.
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(TAM Kam-man)
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 29th December 2020
Maninder Kumar
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 29th December 2020
Torture Claims Appeal Board
1st Putative Respondent’s ref. no.:
USM 114/14/8/29/IN41
Director of Immigration
2nd Putative Respondent’s ref. no.:
RBCZ 9001319/17 (formerly RBCZ 1565/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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