NEERAJ KUMAR v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 799/2018

[2020] HKCFI 2222

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 799 of 2018

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

Following:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 34-year-old national of India who arrived in Hong Kong on 20 December 2010, and when he was refused entry by the Immigration Department, he raised a torture claim on the basis that if he returned to India he would be harmed or killed by a neighbor over a land dispute, and after his torture claim was rejected, he then raised a non-refoulement claim for protection on the same basis.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Ajouli, District Ropar, Punjab, India.  After leaving school he assisted his father farming on his family farmland inherited from his grandfather, but a neighbor had a house built on their land which had become an ongoing dispute between the two families for years.

3.  The dispute became more serious one day when the neighbor attacked his mother with an axe that caused injuries to her head and arm while his uncle and aunt were also injured which required medical treatments.

4.  Afterwards the Applicant’s mother reported the assaults to the police who then arrested the neighbor, but after he was later released on bail, the neighbor threatened to kill the Applicant unless he agreed to stop his mother from pursuing her court case, and when the Applicant refused, the neighbor’s son and his men on several occasions assaulted him by punching and kicking him all over his body.

5.  Fearing for his safety, the Applicant therefore fled to Delhi in late 2010, but when he later heard that the neighbor and his men were looking for him everywhere, he felt it was no longer safe to remain in India, and so on 11 December 2010 he departed for China, and when he later tried to enter Hong Kong but was refused entry, he raised his torture claim, and after it was rejected by the Immigration Department, he then sought non-refoulement protection, for which he completed a Supplementary Claim Form on 23 November 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6.  By a Notice of Decision dated 19 January 2017 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including 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 the neighbor upon his return to India as low due to the low intensity and frequency of past ill-treatment from the neighbor or his son, that it was a private land dispute between the neighbor and his family 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 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 the neighbor to locate him.

8.  On 25 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 1 March 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 24 April 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.  In its decision the Board accepted the Applicant’s claim of a land dispute between his family and the neighbor, but found his evidence of the alleged threats from the neighbor and his son vague, inconsistent and conflicting that it doubted the credibility of his claim of fear of harm from the neighbor upon his return to India, and that in any event with state/police protection available as well as reasonable internal relocation within India for him to move safely to other area away from his home district without any risk of being located by the neighbor that his claim for non-refoulement protection failed on all applicable grounds.        

10.  On 7 May 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 or in his supporting affirmation of the same date, 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 Director or the Board or in their decisions being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

11.  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.

12.  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.     

13.  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.

14.  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.

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