DHIR SOURAV v. TORTURE CLAIMS APPEAL BOARD

HCAL 3615/2019

[2023] HKCFI 2085

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3615 OF 2019

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 / the Applicant being absent in open court;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 33-year-old national of India who entered Hong Kong illegally on 28 November 2015 and was arrested by police on the same day. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by certain local supporters of the political parties Shiromani Akali Dal (“SAD”) and Bharatiya Janata Party (“BJP”) as he supported their rival Indian National Congress (“INC”). He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Jagraon Tehsil, District Ludhiana, Punjab, India. After leaving school he worked as an accountant in a garment wholesale warehouse in Punjab, and started to support INC regularly attended their local meetings and activities, during which he and his fellow INC supporters would frequently come into violent conflicts with supporters of those rival parties when the Applicant would sometimes be attacked and suffered injuries that required medical treatments.

3.  After one such violent attack in 2015 that he suffered serious injuries and was hospitalized for 2 weeks, the Applicant became fearful for his safety, and fled to Delhi, and on 1 November 2015 he departed India for Hong Kong but was refused entry and was returned to India, and some 3 weeks later he again departed India but this time for China, and from there he later sneaked into Hong Kong, and after his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 16 May 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

4.  By a Notice of Decision dated 5 June 2018 the Director of Immigration (“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 his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of 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 of all the relevant circumstances of the Applicant’s claim and found inconsistencies and discrepancies in his evidence that his claim of fear of harm from rival political parties that caused him to leave his country for Hong Kong was found to be doubtful, that in any event the level of risk of harm from those SAD or BJP supporters upon his return to India was assessed as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence or reason for them to specifically target him for harm for political reason given that he was just an ordinary INC supporter without holding any official post in the party, that in the absence of 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 such as Mumbai where it would be difficult if not impossible for anyone to locate him.

6.  On 13 June 2018 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 13 September 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 29 November 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

7.  In its decision the Board accepted the Applicant’s claim of political conflicts with some local SAD and BJP supporters but found no evidence of him being specifically targeted by them for any political reason given that he was just an ordinary INC supporter without holding any official post in the party, and that in any event in the absence of any official involvement that state or police protection would be available to the Applicant upon his return to India as well as reasonable internal relocation for him to move safely to other part of the country away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.

8.  On 4 December 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge:

(1)  That the Board was in breach of procedural fairness by unlawfully fettered its discretion in refusing the Applicant’s appeal on the grounds that they did not satisfy the requirement;

(2)  That the Adjudicator acted in a procedurally unfair manner in dealing with the Applicant’s appeal;

(3)  That the Board’s decisions to refuse the Applicant’s appeal were unreasonable or irrational in the public law sense or the result of procedural errors or unfairness;

(4)  That the Board failed to meet the greater care and duty owed to a self-represented claimant;

(5)  That the Board had significantly relied on source of news not officially recognized or were simply hearsay or outdated that the lack of credible source of information had resulted in groundless speculations that it is safe for the Applicant to return to his home country;

(6)  That the Board reached the wrong decision in assessing the Applicant’s claim without any proper inquiry or carefully understanding his situation by actually touring his home country and asking those familiar with his case what real danger that he would face if he is returned to home country;

(7)  That it was procedurally unfair that he was provided with the hearing bundle late that he was unable to properly prepare for his appeal before the Board.

9.  These are however mostly just some vague and bare assertions of the Applicant containing a few key words or phrases but without any particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or how did the Board unlawfully fetter its discretion or fail to conduct proper inquiry in assessing his claim, or in what way did the Adjudicator act procedurally unfair or fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or which COI relied on by the Board were not officially recognized or were hearsay or outdated. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for his intended challenge.

10.  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.

11.  The only other complaint which the Applicant appeared to have made with any elaboration was about the hearing bundle being provided to him only a few days before his appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given him insufficient time to prepare for his appeal.

12.  Even if it is true that the hearing bundle indeed came to him late as alleged, and the Applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including his NCF, records of his screening interviews and the Director’s decisions should be well familiar to the Applicant as they had earlier all been made available to him during his earlier screening process before the Director and when he was legally represented by DLS, while his NCF was completed on his own instructions with legal assistance, and that at his oral hearing before the Board he never raised any issue or requested the Adjudicator for further time to enable him to better prepare for his appeal. Accordingly, I do not find anything amiss arising from the hearing bundle for the Applicant in his appeal before the Board or that this ground is reasonably arguable for his intended challenge either.

13.  In the Applicant’s case, the fact is that it has also been established by both the Director and the Board in their respective decision that the risk of harm in his claim if real 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.

14.  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.

15.  Furthermore, the Applicant recently on 29 May 2023 filed an affirmation requesting to withdraw his application as all his problems have been solved and that he now wants to return to his home country.

16.  In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation of no more problem for him to return to his home country, I 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