ARUNACHALAM SELVA MUTHU v. TORTURE CLAIMS APPEAL BOARD

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

Following:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 34-year-old national of India who arrived in Hong Kong on 23 January 2020 as a visitor with permission to remain as such up to 6 February 2020 when he did not depart and instead overstayed, and was arrested by police on 4 November 2020.  After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim for protection on the basis that if he returned to India he would be harmed or killed by the family of his wife for marrying her without their consent or approval. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Trichy, Tamil Nadu, India. After leaving school he worked as a transportation worker to make his living in his home district.

3.  In about 2010 he met and dated a girl by the name of Sangavi who was from a different caste and a wealthy family and hence they dated secretly as they knew her family would not approve their relationship, but one day in July 2019 the Applicant was confronted by her father who slapped him on the face and demanded that he stopped seeing his daughter again or else he would kill him.

4.  However, the Applicant and Sangavi ignored her father’s warning and instead decided to get married without her family’s approval, and so in November 2019 they eloped to Chennai and got married on 1 December 2019 in a Hindu temple, and thereafter they moved to Pambai in Kerala.     

5.  Later when they heard that her family had discovered about their marriage and that her father was coming to Kerala to look for them, they decided that Sangavi who was then pregnant with their child should return to her family, while the Applicant should leave the country to save his life, and so on 22 January 2020 the Applicant departed India for Hong Kong where he subsequently overstayed, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 14 July 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

6.  By a Notice of Decision dated 9 September 2021 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”).

7.  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 wife’s family upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of his wife’s family to seriously harm or kill him other than angry words and empty threats as his wife and son had never been harmed or ill-treated by her family, that in any event it was a private and personal dispute between him and his wife’s family only 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 1.3 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 young adult with working experience to move to other areas of the country away from his home district in large cities such as Mumbai where it would be difficult if not impossible for anyone to locate him.

8.  On 23 September 2021 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but before it was heard by the Board, the Applicant on 13 June 2022 in writing requested to withdraw his appeal, and upon being satisfied that his request was freely sought, that he fully understood the consequences of the withdrawal, and that he had good reason to do so in that it was safe for him to return to his home country, the Board by its letter dated 11 July 2022 directed that his appeal be withdrew and dismissed, and that it also confirmed the Director’s decision as having finally determined and disposed of the Applicant’s non-refoulement claim.

9.  However, some 4 months later on 24 November 2022 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 or in his supporting affirmation of the same date in which he just stated that he does not agree with the decision but without providing any explanation as to why, or for that matter why he now wants to challenge the Board’s decision in allowing the withdrawal of his appeal.  

10.  By then the Applicant was also out of time with his application, as Order 53 rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made.

11.  As the last day of the three-month period for him to file his Form 86 fell on 11 October 2022, the Applicant was therefore almost 6 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: AW v Director of Immigration [2016] 2 HKC 393.

12.  In the Applicant’s case, a delay of 6 weeks must be considered as substantial and inordinate, for which he did not provide any explanation or reasons in his Form or affirmation, and as the record shows that the decision was sent on the same day of 11 July 2022 to his then reported address without being returned through undelivered post, I am unable to see any good or valid reason for his such serious delay.      

13.  As for the merits, if any, of his intended application, as noted above that the Applicant has also failed to put forward any proper ground for his intended challenge, or for that matter why he now wants to challenge the Board’s decision which was made at his own request to withdraw his appeal. As such, and in the absence of any error of law or irrationality 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 merits in his intended application either.

14.  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.

15.  In the Applicant’s case, the Board withdrew and dismissed his appeal at his own request upon being satisfied that it was freely sought, that he fully understood the consequences of the withdrawal, and that he had good reason to do so in that it was safe for him to return to his home country, and as held by the Court of Appeal in Re Das Purnima Rani, CACV 85/2019 [2019] HKCA 669 that once the Board dismisses an appeal against the Director’s refusal of a non-refoulement claim upon a valid withdrawal or abandonment of the appeal by the claimant, in the sense of being the result of a deliberate and informed decision, the appeal is no longer extant and the Board becomes functus officio with no jurisdiction to take any step regarding the appeal, and as stipulated in Section 37V(2)(b) of the Immigration Ordinance, a non-refoulement claim rejected by the Director is finally determined when the appeal against it was disposed of  notwithstanding the lack of determination on the merits, as the dismissal of an appeal on its withdrawal nevertheless disposed of the appeal, and hence in the present case of the Applicant, the Director’s decision has finally determined and disposed of his non-refoulement claim.

16.  Henceforth, the fact that the Director in his decision has correctly determined that the risk of harm in the Applicant’s claim even if real 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 the Applicant with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.                

17.  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 the Director’s consideration and assessment of the Applicant’s claim or the Board’s decision on his request to withdraw his appeal.

18.  For all 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