PERUMAL DINESH v. TORTURE CLAIMS APPEAL BOARD /NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 544/2017

[2019] HKCFI 667

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 544 of 2017

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 the Applicant being present / absent in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The applicant is a 32-year-old national of India who arrived in Hong Kong on 28 October 2007 with permission to remain as a visitor up to 11 November 2007 when he did not depart and was arrested by police on 12 November 2007.  After being referred to the Immigration Department for investigation, he lodged a torture claim on the basis that if he returned to India he would be harmed or killed by certain members of rival political party Anna Dravida Munnetra Kazhagam (“ADMK”).  He has since been released on recognizance pending the determination of his claim. 

2.  The applicant was born and raised in Namakkal, Namakkal Thalukara, Tamilnadu, India where his father was a supporter of the group Naxalite of the Communist Party of India, and under his father’s influence he started to support the Dravida Munnetra Kazhagam Party (“DMK”) at the age of 16 by actively attending their meetings and rallies.

3.  In the October 2006 village council election, the applicant participated in DMK’s campaign for the election when he and his fellow DMK supporters were frequently harassed and threatened by ADMK supporters, and on the night after ADMK won the election, a group of five ADMK supporters came to his home to threaten him and his father to stop supporting DMK or Naxalite or else they would be killed.

4.  On 26 April 2007 when the applicant was celebrating a Hindu festival with his friends, he was attacked by the same group of five ADMK supporters with wooden sticks that he suffered injuries to his face, his legs and his back before managing to flee from the scene to take shelter at a friend’s home.

5.  On the following morning the applicant was informed by a friend that the same group of ADMK supporters who earlier attacked him had gone looking for him at his home the same night, and when they could not find him they attacked his parents that his mother had to be taken to the hospital where she later died from her injuries, and that he was warned that he should leave the place for his own safety.  The applicant therefore immediately fled to Chennai to take shelter at his uncle’s home, but when those ADMK supporters started looking for him in Chennai, he felt it was no longer safe to remain in India and therefore on 26 October 2007 departed for Hong Kong where he subsequently lodged his torture claim.

6.  During his release on recognizance pending determination of his claim, he was arrested twice for engaging in unapproved employment and sentenced to imprisonments, and upon the commencement of the unified screening mechanism, his torture claim was taken as a non-refoulement claim for which he subsequently completed a Non-refoulement Claim Form (“NCF”) on 22 July 2014 and then attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

7.  By a Notice of Decision dated 9 March 2015 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 section 8 of the Hong Kong Bill of Rights Ordinance (“HKBOR”), Cap 383 (“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 found no reliable evidence that the ADMK supporters would specifically target him for ill-treatment and did not accept that he would face a future risk of harm from them in his home district upon his return to India, that in the absence of any official involvement that state and police protection would be available to him 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 to move to other area away from his home district in large cities such as Chennai or Tamil Nadu where it would be difficult if not impossible for those ADMK supporters to locate him.

9.  The applicant then appealed against that decision to the Torture Claims Appeal Board (“the Board”), for which he attended two oral hearings on 20 October 2016 and 28 November 2016 represented by his lawyer and gave evidence before the Board and answered questions put to him by the adjudicator for the Board.  On 13 July 2017 his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  In its decision the Board upon hearing the applicant found serious discrepancies and inconsistencies in his evidence between those given during his initial torture claim and those given much later in his NCF and screening interview as well as in his appeal hearing that the Board for the reasons and analysis set out in details in paragraphs 88 – 103 found his claim entirely incredible and unacceptable, and concluded that he does not face any real risk of harm if refouled to India.

11.  On 30 September 2016 the Director on his own initiate in writing invited the applicant to submit any additional facts 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”), and upon receiving and considering further representation submitted by his lawyer on his behalf the Director on 22 August 2017 again rejected the applicant’s claim on all applicable grounds including his BOR 2 risk claim.

12.  By then the applicant already on 24 August 2017 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 the Form, nor did he request for any oral hearing, and in his supporting affirmation of the same date he merely repeated his claim as follows:

“ I like to inform you that I have life threaten to my life because I was work with Naxalite group around 6 months, and my father was still belong to support to them. Therefore the ADMK party members are making death threats to my all family specially for me because I am young, my father was now [illegible] life. I show my all documents for my oral hearing, but they never care about my case and they use to neglect the case. I attach document with this affirmation. I can submit my more document in future. My father was attacked by ADMK party members. I can submit further information report in future.” [sic]

13.  The applicant however has since not as he claimed in the affirmation submitted any further information or documents in support of his claim, and as such I do not find any reasonably arguable ground has been put forward by him in his supporting affirmation or elsewhere. 

14.  As has been repeatedly emphasized by the Court of Appeal, evaluation of risk of harm in a non-refoulement claim is primarily a matter for the Director and the Board who are entitled to make their evaluation based on the evidence available to them, and that the court will not usurp their role as primary decision makers in the absence of any legal error being identified by the applicant: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; and Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400. 

15.  In the premises and having proceeded to consider 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.

16.  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