SANDEEP v. BETTY KWAN, ADJUDICATOR OF THE NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 51/2018

[2019] HKCFI 1235

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 51 of 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;     or
	consideration of the documents and oral submissions by the Applicant in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The applicant is a 33-year-old national of India who last arrived in Hong Kong on 3 June 2014 and when he was refused entry by the Immigration Department, he lodged a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by a certain member of rival political party Akali Dal Party (“ADP”).  He has since been released on recognizance pending the determination of his claim.

2.  The applicant was born and raised in a village in Punjab, India to a family of supporters of the political party Congress Party (“CP”).  After leaving school he worked as a salesman and also became a CP supporter in 2012 regularly attending its meetings and rallies in his home village.

3.  One day in 2013 KS, an influential member of rival ADP and a local gangster dealing in illegal drugs sent his men to approach the applicant to quit CP to join ADP and to deal in illegal drugs for him, but all of which the applicant had declined.

4.  A few months later the applicant heard one of his friends had been arrested by police for dealing drugs, and the applicant suspected that he was being set up by KS for being a CP supporter.

5.  About one month thereafter one night the applicant was ambushed by a group of unknown men who attacked him with wooden sticks until they were chased away by other villagers after hearing the applicant’s screams.  On the following day his mother reported the matter to the Jandiala Police Station as the applicant was afraid of leaving his home and risked being assaulted again, but the police refused to help.

6.  After another month while the applicant was at the market, he received a call from his mother that the police had come to his home looking for him for suspicion of being involved in his friend’s drug activities.  As the applicant feared that he had been similarly set up for false charges he therefore fled to Dhando Wal, Shah Kok, Jalanhar to take shelter at his sister’s place where he stayed for several months without any incidents, but as he still feared that he would eventually be located by KS and that it would not be safe to remain in India, he therefore departed on 2 June 2014 for Hong Kong, and when he was refused entry he lodged his non-refoulement claim, for which he later completed a Non-refoulement Claim Form on 7 July 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.     

7.  By a Notice of Decision dated 14 October 2014 the Director of Immigration (“the 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 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”).

8.  In his decision the Director took into account of all the relevant circumstances of the applicant’s claim and assessed the risk of harm from KS to the applicant upon his return to India as low due to the low intensity and frequency of past ill-treatment from him, that there was no independent evidence that KS was involved in the attack of the applicant in 2013, 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 areas away from his home district in large cities such as Mumbai where it would be difficult if not impossible for KS or his men to locate him.

9.  The applicant then lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, for which he attended at the scheduled hearing on 21 January 2015 which was however adjourned at his request as he was suffering from a fever, and at the adjourned hearing on 23 March 2015 he claimed to be feeling dizzy and sought another adjournment which was however refused by the adjudicator in the absence of medical evidence, and hence the hearing proceeded during which the applicant gave evidence and answered questions put to him by the adjudicator.  On 17 April 2015 his appeal was dismissed by the board which also confirmed the Director’s decision.

10.  In its decision the Board found on the evidence available including the applicant’s own testimony that his account unreliable and implausible, and that in any event it would not be unreasonable for the applicant in his circumstances to relocate to any place in India outside his home district or Punjab where ADP only has a presence and that there was no appreciable risk of harm from KS or other members of ADP in other places in India.

11.  On 7 December 2015 the applicant sought leave under HCAL 242/2015 to apply for judicial review of the Board’s decision, for which he requested for an oral hearing before Remedios J, but when he failed to appear at the scheduled hearing the Court proceeded to deal with and refused his application in his absence on 8 February 2017.

12.  Meanwhile on 29 December 2016 the Director on his own initiative by letter invited the applicant to submit additional facts which may be relevant to his non-refoulement claim on his absolute or non-derogable rights under HKBOR being violated including right to life under Article 2 (“BOR 2 risk”), and in the absence of any response from him proceeded to consider his non-refoulement claim and by a Notice of Further Decision dated 19 January 2017 the Director again rejected his claim on all applicable grounds including BOR 2 risk.

13.  On 28 September 2017 the applicant made an application for late filing of his appeal to the Board against the Director’s further decision, for which he explained that he had been arrested by police and was detained at the Lai Chi Kok Reception Centre when the Director’s further decision was sent to his previous address and hence he was not aware of the decision until he was later released.  His explanation was accepted by the Board which allowed his late filing but decided it was not necessary to hold any oral hearing for his appeal.  On 15 December 2017 his appeal was again dismissed by the Board.

14.  In this decision the Board found that that the applicant has failed to show that there is or will be a necessary and foreseeable breach of his right protected by BOR 2, or that he will be at risk of harm from capital punishment inflicted by the government of India or face harm from the government that would place his life at risk, and that as its earlier decision already found that KS was a non-state actor and in the absence of any official involvement that there is no evidence to suggest that state protection would not be available to the applicant or that it would be insufficient, or that the applicant had suffered physical or mental suffering of the requisite severity in the past or that there was a real risk that the ill-treatment he would face if refouled would attain the minimum level of severity referred to by the Court of Final Appeal in Ubamaka v Secretary for Security (2012) 15 HKCFAR 743.  

15.  On 10 January 2018 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in it he put forward the following grounds for his intended challenge:

(1)  that the Director wrongly concluded that the applicant failed to establish a personal and real risk of his absolute and non-derogable rights under HKBOR including right to life under BOR 2 risk upon his return to India when his mother did report the matter to the local police and that it was a misconduct of the police officer that no protection was provided to the applicant;

(2)  that the Director failed to advise the applicant to obtain relevant medical evidence before drawing the conclusion that there was no real risk of ill-treatment to him;

(3)  that the adjudicator failed to make sufficient enquiry before finalizing her decision;

(4)  that the adjudicator wrongly concluded that the applicant failed to show that there would be insufficient state protection when it was evident that there was no protection provided to the applicant at all; and

(5)  that the adjudicator failed to advise the applicant to obtain medical evidence from the Indian authorities before concluding that it was not shown that the applicant had suffered physical and/or mental suffering of the requisite severity in the past.  

16.  These are however mostly 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 Director or the Board had erred in their decisions, or how the Director was wrong in assessing his claim under BOR 2 risk, or in what way did the adjudicator fail to make sufficient enquiry in her consideration of his claim, or how the adjudicator had erred in finding that state protection would be available to him if refouled to India, or how any medical evidence if available would advance his case any further. None of these assertions were elaborated or presented with any particulars or specifics by the applicant, and the fact that his mother may have made a police report on his behalf and that there was no follow-up action by the local police does not necessarily follow that his claim must engage BOR 2 risk.

17.  In the absence of any additional facts or materials from the applicant, the adjudicator was in my judgment correct in coming to the conclusion that the materials presented by him earlier with legal representation did not support a claim under BOR 2 risk, and I do not find any merit in any of the grounds put forward by the applicant for his intended challenge. In the premises I not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and accordingly I 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