RAJENDIRAN JOHNKENNADY v. TORTURE CLAIMS APPEAL BOARD

HCAL 1646/2020

[2025] HKCFI 5021

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1646 OF 2020

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

Following:

1.   Extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 20 April 2016 be refused; and

2.   The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.   The Applicant is a 52-year-old national of India who arrived in Hong Kong on 10 September 2007 as a visitor and with permission to remain as such up to 24 September 2007 when he did not depart and instead overstayed, and was arrested by police some 6 months later on 23 March 2008.  After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim for protection on the basis that if he returned to India he would be harmed or killed by his former business partner over their monetary dispute. He was subsequently released on recognizance pending the determination of his claim.

2.   The Applicant was born and raised in Kalukadi, Tamil Nadu, India.  After leaving school he worked as a farmer on his own farmland, got married and raised a family with 2 children in his home district.

3.  In 2006, he invested 200,000 Indian Rupees in the money-lending business of his friend Arulsamy who in return promised to pay him his share of the business profits on a monthly basis.

4.  However, after receiving only one such payment, the Applicant never received any further payments from Arulsamy who complained of poor business, and by 2007 the Applicant ran out of patience and demanded for his money back, but to which Arulsamy refused, which then led to a heated argument between them during which Arulsamy threatened to kill the Applicant if he insisted in pursuing his claim.

5.  Several days later one night a group of unknown men came to the Applicant to try to attack him but left after waking up the neighbors.

6.  About 2 weeks later the same group of men returned to the Applicant’s home and forcibly abducted him to a forest where he was punched and kicked and was forced to sign his name on some blank pieces of paper before he was eventually released.

7.  The Applicant suspected that those men were sent by Arulsamy to threaten him, and so he became fearful for his life and fled to Chennai, but later when he heard that those men were coming to Chennai to look for him, he felt that it was no longer safe to remain in India, and so on 10 September 2007 he departed for Hong Kong where he subsequently overstayed, and upon his arrest by the police some 6 months later he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 20 June 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

8.  By a Notice of Decision dated 29 January 2015 the Director of Immigration (“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 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”).

9.  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 Arulsamy and followers 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 Arulsamy to seriously harm or kill him other than to stop him from pursuing his claim for the return of his investment, that in any event it was a private monetary dispute between just the 2 of them 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 1.2 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 areas of the country away from his home district in large cities where it would be difficult if not impossible for Arulsamy to locate him.

10.  On 11 February 2015, the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 10 September 2015 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 20 April 2016 his appeal was dismissed by the Board which also confirmed the Director’s decision.

11.  In its decision[1], the Board found material inconsistencies discrepancies and implausibility in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from his former business partner Arulsamy over their monetary dispute that caused him to leave his country to come to Hong Kong to seek protection, that his claim of having invested any money on any money-lending business of a person named Arulsamy as both far-fetched and unconvincing that it is not accepted that any of the incidents described by the Applicant had actually occurred in the manner as asserted or at all and that they were simply invented by him for advancing his claim for non-refoulement protection, and that the credibility of his claim was further undermined by his failure to raise it upon first arriving in Hong Kong until some 6 months later and only after his arrest by the police that the Board concluded that his claim for non-refoulement protection failed on all applicable grounds.

12.  Meanwhile on 13 January 2017 the Director on his own initiative in writing invited the Applicant to submit any additional facts which he may consider relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute and non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2”), and in the absence of any reply or response from him, the Director by a Notice of Further Decision dated 6 February 2017 also rejected the Applicant’s BOR 2 Claim upon finding that he had failed to establish a personal and real risk of his absolute and non-derogable rights under HKBOR including right to life under BOR 2 being violated upon his return to India.      

13.  The Applicant never brought any appeal to the Board against this Further Decision of the Director, but some 3 ½ years later on 12 August 2020 he filed a Form 86 for leave to apply for judicial review of a decision of the Board, which according to the record that the only one made by the Board as regard his non-refoulement claim is the one dated 20 April 2016, but for which the Applicant did not put forward any ground for seeking relief in his Form or his supporting affirmation of the same date in which he just asserted that he is not satisfied with the decision as being unreasonable but without explaining why, nor did he put forward any proper ground for his intended challenge or request any oral hearing for his application.    

14.  By then the Applicant was clearly 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.

15.  As the last day of the three-month period for him to file his Form 86 as regard the Board’s decision of 20 April 2016 fell on 20 July 2016, the Applicant was therefore more than 4 years 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.

16.  In the Applicant’s case, a delay of more than 4 years must be considered as extremely 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 20 April 2016 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.      

17.  As for the merits, if any, of his intended application, as noted above that the Applicant has also failed to put forth 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 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.

18.  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.

19.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, 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 to challenge the finding of the Board.

20.  Furthermore, the fact is that it has also been established by the Director in his decision 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, a decision also agreed and confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

21.  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.

22.  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