VILLAN PALPANDI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1438/2019

[2024] HKCFI 1625

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1438 of 2019

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

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 17 May 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.  The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, I shall deal with his application on paper.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.  The applicant, aged 47, is an Indian. He entered Hong Kong as a visitor on 30 November 2006 and overstayed since 4 December 2006. On 5 December 2006, he was arrested by the police for breach of condition of stay and offences related to Dutiable Commodities Ordinance. He was convicted on 15 February 2007 and was sentenced to imprisonment for eight weeks. Later, on 10 August 2015, the applicant was arrested for taking employment while being a person in respect of whom a removal order was in force. He was convicted on 13 August 2015 and was sentenced to imprisonment of 15 months.

5.  The applicant made a torture claim on 22 February 2007, which was rejected on 19 April 2013. His subsequent appeal was also dismissed on 30 May 2013. On 29 April 2013, the applicant made a further non-refoulement claim on all applicable grounds other than Torture risk[1]. The non-refoulement claim was made on the basis that, if refouled, he would be harmed or even killed by a district councilor named Rasanga Thevar (“Thevar”) because he assisted his opponent Khaja Mohideen (“Khaja”) during an election. The applicant was also worried that the relatives of a man, whom died after being hit by his van, would take revenge and kill him.

6.  According to the applicant, he was a member of the Dravida Munnetra Kazhagam party (“DMK”). There was a district councillor election held in his locality in October 2006, where Thevar from the All India Anna Dravida Munnetra Kazhagam party (“AIADMK”) was contesting for re-election. The applicant and six of his friends chose to campaign for Khaja from DMK in the election. During the campaign period in September 2006, the applicant and his friend were attacked several times. The first attack took place three weeks before the election when the applicant and his friends fought with about 10 to 15 Thevar’s supporters after an argument. In October 2006, three days before the election, while the applicant was driving his friends on a van, they were intercepted by three vans. Several men with sticks, small logs and bats then got off their vans and smashed the windscreen and windows of the applicant’s van. They were told not to support Khaja. During the process, the applicant accidentally hit a man with his van, whom he later knew died (“the traffic accident”). The applicant and his friends managed to escape from the van with some of his friends suffering injuries. They reported the incident to the police, but no follow up action was taken. They then hid in a place provided by Khaja. On the evening of the Election Day, while the applicant and his friends were still at the hideout provided by Khaja, more than ten hitmen hired by Thevar went to the houses of the applicant and his friends, making verbal threats to their family members. In the afternoon the next day, the hitmen returned and assaulted the applicant’s mother, causing her to suffer head injuries.

7.  The applicant and his friends relocated to his friend, Murugan’s house after knowing that Thevar won the election. In November 2006, Thevar found out their whereabouts and requested Murugan not to provide shelter for them. Murugan therefore took the applicant and his friends elsewhere, but they were still discovered by Thevar after three or four days. Murugan told the applicant to leave the country because he was the leader among his friends, whom Thevar considered a threat. On 24 November 2006, the applicant left India for Thailand. During his two-week stay in Thailand, he was informed by Murugan that Thevar’s men assaulted his parents at their home. Murugan was also threatened to disclose the applicant’s whereabouts.

8.  The applicant later learnt that Thevar had filed a false case against him for assaulting his men in September 2006 and an arrest warrant was issued against him. The relatives of the man whom he killed with his van also constantly harassed the applicant’s parents and threatened to kill him. On 22 November 2016, the applicant learnt that his brother died the next day after he went to work at a farm owned by Thevar. He believed that his brother’s death might be associated with him.

9.  The applicant was of the view that the police would not render him assistance because they sided with Thevar, who was a member of the ruling party. He also considered internal relocation within India not viable because he could not speak other languages and hence could not communicate with people in other parts of India. In any event, Thevar could utilise the extensive network of his party to locate him.

10.  Details of the applicant’s story can be found in paragraph 12 of the Director’s Decision dated 20 February 2017 (“the Director’s Decision”).

The Director’s Decision

11.  The Director considered the applicant’s claim in relation to the following risks:

a.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

b.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

c.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

12.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that a huge part of the applicant’s claim was based on hearsay evidence. Moreover, the applicant did not mention the traffic accident in his previous torture claim, but only raised it in his non-refoulement claim. The Director considered that his failure to provide consistent information in relation to such an important claim undermined his credibility. Furthermore, the low frequency and intensity of past ill-treatment suffered by the applicant is indicative of a small future risk of harm upon his return to India. His association of his brother’s death with Thevar was also merely speculative [28]-[32].

13.  In any event, (i) state protection is available to him upon his return [33]-[42]; (ii) internal relocation is viable [43]-[48] and (iii) the applicant’s case failed to meet any of the requirement under BOR 2 and BOR 3 risk [50]-[56] or Persecution risk [57]-[63].

The Board’s Decision

14.  The applicant appealed the Director’s Decision to the Board. On 11 July 2018, the Board conducted an oral hearing.

15.  The Board found several aspects of the applicant’s evidence detailed, consistent and plausible, but they were of the view that he had significantly exaggerated his claim [50]. The Board accepted that the applicant joined DMK in 2001, but found that his involvement was only limited to canvassing votes and campaigning for a short period of time prior to election in 2006. The Board gave credence to the incidents of election violence in 2006 against the applicant and his family after considering the Country of Origin Information, but was of the view that the extent of Thevar’s enmity towards the applicant was exaggerated given his low profile role in DMK. As to the traffic accident, the Board only accepted the happening of the accident, but did not accept that the victim had subsequently died and that his relatives harassed the applicant’s family as a result. Regarding the aftermath of the attack, the Board accepted that the applicant and his friends relocated elsewhere and made a report to the police, but rejected his claim that an arrest warrant was issued against him [51]-[83].

16.  In relation to the death of the applicant’s brother in November 2016, the Board merely accepted his death, but refused to accept that his death was caused by Thevar. Finally, as to the applicant’s ethnicity as a Pallan, the Board considered that he might be subjected to certain extent of discrimination, but was not convinced of his claim at the hearing that he was beaten up or threatened by Hindus because he asked people to convert to Christianity [84]-[97].

17.  Based on the findings above and the significant amount of time elapsed since the 2006 events, the Board was of the view that the risk of harm faced by the applicant was remote and his claim failed to meet any of the requirement under BOR 2 and BOR 3 risk or Persecution risk. In any event, internal relocation within India was also available [11]-[22], [98]-[115].

18.  The Board therefore dismissed the applicant’s appeal and confirmed the Director’s decision.

Application for leave to apply for judicial review of the Board’s Decision

19.  The applicant has filed Form 86 on 27 May 2019 to apply for leave for judicial review of the Board’s Decision.

20.  In his affirmation in support of his application, the applicant says he is not satisfied with the Board’s Decision and he wants to appeal.

DISCUSSION

21.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

22.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

23.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

24.  The adjudictor had considered the applicant’s evidence carefully in the Board’s Decision. For the reasons above, the Board has explained why it considers that the applicant is not subjected to any real risk of the applicable risks and that internal relocation is viable if he returns to India.

25.  The applicant has not been able to raise any valid ground to challenge the Board’s Decision. From the Board’s analysis of the evidence, the Board was entitled to reach its conclusion as it did. There is no reason for this Court to interfere with the Board’s Decision.

26.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

CONCLUSION

27.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his 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