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HCAL 123/2018
[2019] HKCFI 1015
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 123 of 2018
BETWEEN
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Sonu alias Sonu Rana |
Applicant |
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Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office |
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 32-year-old national of India who entered Hong Kong illegally in May 2012 and was arrested by police on 18 June 2012. After he was referred to the Immigration Department for investigation, he raised a torture claim which was later taken as a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by the people of the Valmiki caste in his home village as he was of the Rajput cast. He has since been released on recognizance pending the determination of his claim.
2. The applicant was born and raised in Village Babiyal, City Ambala, Cantt, Haryana, India to the Rajput caste and where his parents and siblings still live. In his home village lived two castes, the Rajput caste and the Valmiki caste who tended to live on different side of the village away from each other due to longstanding conflicts between the two castes over various religious and political issues.
3. After leaving school the applicant started his own auto rickshaw business in Haryana and got married. However, his disputes with the Valmiki people started in 2006 when one of his friends was insulted by some of the Valmiki people which led to fights between him and his fellow Rajput friends and the Valmiki people requiring interventions of both their families and the police, but as the conflicts escalated when fights between the two groups became more vicious involving weapons such as wooden sticks and knives that the applicant was injured in some of them, and when eventually some of the fights ended with fatalities on both sides, the applicant felt that it was no longer safe to remain in Haryana and fled to Delhi and then from city to city until 2012 when he was advised by his family to leave India for his own safety, and so he departed on 13 April 2012 for China, and from there he later sneaked into Hong Kong and raised his torture claim, which was later taken as a non-refoulement claim and for which he completed a Non-refoulement Claim Form on 8 July 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.
4. By a Notice of Decision dated 28 October 2015 the Director of Immigration (“the Director”) rejected the applicant’s claim on all then 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 (“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”).
5. In his decision the Director took into account all the relevant circumstances of the applicant’s claim and assessed the level of risk of harm from those Valmiki people to the applicant upon his return to India as low due to the low intensity and frequency of past ill- treatment from them, that he was never personally or specifically targeted by the Valmiki people for attacks, that in the absence of 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 1.2 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 work 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 Valmiki people to locate him.
6. By a Notice of Further Decision dated 14 March 2017 the Director again rejected the applicant’s claim in the absence of any additional facts from him 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”).
7. 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 9 November 2015, and for which he attended an oral hearing on 7 April 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board. On 23 January 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.
8. In its decision the Board found none of the applicant’s alleged ill-treatments received from the Valmiki people had attained the minimum level of severity within the definition of any of the applicable risks, that there is no evidence that he had been specifically subjected to the risk of harm by the Valmiki people in his home village that would put him within any of the applicable grounds, and that both state or police protection would be available to him as well as reasonable internal relocation for the applicant as an able-bodied young man with work experience to move safely to large cities such as Uttar Pradesh, Rajasthan or Delhi where he had stayed before without further incidents and where it would be difficult for any of those Valmiki people to locate him.
9. On 26 January 2018 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:
(1) irrationality in its failure to consider the concept of state acquiescence;
(2) procedural impropriety for making insufficient inquiry and for failing to provide adequate reasons for its decision;
(3) procedural impropriety/unfairness n its failure to investigate into the COI of India;
(4) irrationality in its failure to place weight on relevant information and/or selectively placing weight on irrelevant information;
(5) irrationality in its failure to consider a consistent system of human right violation in India;
(6) irrationality in its failure to consider if state protection exists in India;
(7) irrationality in placing weight on irrelevant matters or on inaccurate or incorrect facts;
(8) procedural impropriety in failing to call for psychological and/or psychiatric reports and/or evaluation;
(9) procedural impropriety in applying the incorrect standard of proof and for giving no reasonable basis for rejecting his claim on credibility or to consider the extended form of state acquiescence, and failing to fully consider the COI reports in assessing risk to the applicant;
(10) irregularity in the decision-maker being a different person than the interviewing officer; and
(11) no proper basis for consideration of internal relocation as there was fear that his life risks the threats of death if he was to return to his home country.
10. These are however all just broad and vague assertions of the applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the adjudicator had erred in the decision, or what relevancy was concept of state acquiescence to his claim, or in what way did the adjudicator fail to take into account relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in his case, or how did the Board apply the incorrect standard of proof. None of these assertions were elaborated or presented with any particulars or specifics by the applicant, and in the absence of any legal error or procedural unfairness being clearly and properly identified by him, I do not find any basis or merits in any of these complaints, or that any of them can reasonably be arguable for his intended challenge.
11. As has been repeatedly emphasized by the Court of Appeal, 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 Re Litoun Mounsy [2018] HKCA 537.
12. Furthermore, 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 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.
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.
Dated the 17th day of June 2019.
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(NG Ka-wing)
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
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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 17 June 2019
Sonu alias Sonu Rana
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 17 June 2019
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 2541/15/11/53/IN539
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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