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HCAL 295/2022
[2023] HKCFI 1455
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 295 OF 2022
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BETWEEN
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Bhatt Dinesh Raj |
Applicant |
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and |
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Torture Claims Appeal Board |
Putative Respondent |
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and |
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Director of Immigration |
Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge Bruno Chan:
The application for leave to apply for judicial review be dismissed.
Observations for the Applicant:
1. The Applicant is a 32-year-old national of India who arrived in Hong Kong on 15 January 2019 as a visitor with permission to remain as such up to 29 January 2019 when he did not depart and instead overstayed, and was arrested by police almost 2 years later on 17 October 2020. 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 a fellow villager over their land dispute in their home village. He was subsequently released on recognizance pending the determination of his claim.
2. The Applicant was born and raised in Shree Ashram, Brahm-Niwas, Bhupatwala, Haridwar, Uttarakhand, India. After leaving university with a Master degree, he worked as a computer instructor in his home district where he also farmed on a piece of land which he inherited from his father.
3. His land was however coveted by a fellow villager Anil Mishra who owned the adjacent lands and was influential in the village with political connections, and was trying to steal the Applicant’s land by raising issues over its title, and one day in September 2018 he together with his followers came onto the Applicant’s land and made threats against the Applicant if he refused to transfer the land to him.
4. Several weeks later one day in October 2018 while on his way home from work, the Applicant was accosted by Anil Mishra and his men who attacked him with wooden sticks that he suffered cuts and bruises all over his body, and before they left, Anil Mishra warned him that next time he would be killed if he still refused to transfer the land to him.
5. After another vicious attack by Anil Mishra and his men, the Applicant became fearful for his life and departed India one day in November 2018 for Thailand and Macau before arriving in Hong Kong on 15 January 2019 where he subsequently overstayed, and upon 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 27 May 2021 and attended screening interview before the Immigration Department with legal representation.
6. By a Notice of Decision dated 30 June 2021 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”).
7. In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real and substantial risk of him being harmed or killed by Anil Mishra or his followers upon his return to India due to the low intensity and frequency of past ill-treatment from them, that it was in any event a private land dispute between them 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 1.3 billion people spread across a vast territory of more than 2.9 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 part of the country away from his home district in large cities where it would be difficult if not impossible for Anil Mishra or his followers to locate him.
8. On 7 July 2021 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which the Board did not find it necessary to hold any oral hearing, and proceeded to deal with his appeal in his absence and on papers. On 16 February 2022 his appeal was dismissed by the Board which also confirmed the Director’s decision.
9. In its decision the Board did not take issue with the credibility of the Applicant’s claim of fear of harm from Anil Mishra who was trying to take his land by force, but found that it was a private dispute between the 2 of them without 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.
10. On 5 May 2022 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date in which he just stated that he is not satisfied with the decision and that he cannot go back to his home country as his life is not safe there but without putting forward any proper ground for his intended challenge. 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 reasonably arguable basis for his intended challenge.
11. 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.
12. In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in his claim 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.
13. 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.
14. Furthermore, the Applicant recently filed an affirmation requesting to withdraw his application as he wants to return to his home country.
15. In the premises, as I am for the stated 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 his wish to return to his home country, I accordingly dismiss his leave application.
Dated the 31st day of May 2023
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(Chung Lai Fan, Christine)
for Registrar, High Court
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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
Notes for the Applicant:
If leave has been granted, the Applicant or Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant on 31 May 2023
Bhatt Dinesh Raj
Applicant’s ref. no.:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 31 May 2023
Torture Claims Appeal Board
Putative Respondent’s ref. no.:
USM 18236/21/7/36/IN3270
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 640/21 (formerly as RBCZ 10626/21)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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