LAMBA BHARAT BHUSHAN v. TORTURE CLAIMS APPEAL BOARD

HCAL 499/2017

[2018] HKCFI 947

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 499 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 oral submissions by (counsel for) the Applicant being absent / in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The applicant is a 45-year-old national of India who arrived in Hong Kong on 10 June 2014 with permission to remain as a visitor up to 24 June 2014 when he failed to depart and instead overstayed until he was arrested by the police on 15 September 2014.  After he was referred to the Immigration Department for investigation, he raised his non-refoulement claim on 19 September 2014 with the Department on the basis that if he returned to India he would be harmed or killed by a property dealer SS over their property dispute back in India.  He has since been released on recognizance pending determination of his claim.  

2.  The applicant was born and raised in Tilak Nagar, New Delhi, India where his wife and two sons still reside.  After leaving school he and his brother started a successful business selling auto parts for scooters up to his departure from India and which is still being run by his brother in his absence.

3.  In late 2012 he purchased a property in Uttam Nagar, New Delhi in his wife’s name from SS for 1.2 million Indian Rupees in which a four-storeyed house was to be built and to be completed by March 2014. However, when the applicant later found that the completed house had been sold to another person and confronted SS about it, SS offered to return the money to him by April 2014, but when he still failed to do so and instead offered a smaller flat to the applicant, and when it was rejected by the applicant, a heated quarrel ensued which led to no resolution reached between them, but the applicant did not seek any help from the police as he believed SS was wealthy and influential and that he did not want to provoke him any further.

4.  On 9 June 2014 the applicant departed India as planned for his visit to Hong Kong, during which he received a telephone call from his wife in India that SS had come to their home with several men looking for him and threatened her that he would not repay the money to the applicant and that he would kill him if he insisted it if and when he saw him in India.  As a result the applicant became frightened for his own safety and decided to stay in Hong Kong and subsequently lodged his non-refoulement claim.   

5.  While his claim was being investigated by the Immigration Department, the applicant received another call form his wife in India that SS had offered to give him two weeks to return to India to negotiate with him to settle their dispute, but upon indicating to the Immigration Department that he wanted to withdraw his claim if he was allowed to leave within two weeks, he was told that the Department could only arrange for him to fly back to India in 8 weeks, but when SS refused to give him more time and withdrew his offer to settle, the applicant decided to continue with his non-refoulement claim, for which he completed his non-refoulement claim form (“NCF”) on 8 March 2016 with legal representation from the Duty Lawyer Service. 

6.  By a Notice of Decision dated 2 September 2016 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”).

7.  In his decision the Director found no evidence of any direct threats being made by SS to the applicant, that the applicant’s confirmation that he is prepared to forego any demand for repayment from SS no longer gives SS any reason to harm the applicant, that state protection would be available to the applicant upon his return to India in the absence of any evidence of any involvement by the state or police in any of SS’s threats, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in India with such a large population of 1.2 billion people spread over a vast territory of more than 3.2 million square kilometers that the applicant can safely live anywhere other than his home district such as Patna in Bihar or Lucknow in Uttar Pradesh beyond any threats from SS.  

8.  By a Notice of Further decision dated 31 May 2017 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts which may be 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”).

9.  By then the applicant was already in the process of his appeal to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, which appeal he filed on 13 September 2016, and for which he attended an oral hearing on 20 June 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 1 August 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.  In its decision the Board noted the applicant’s representation at the conclusion of his oral hearing before the adjudicator that he was not interested in Hong Kong, and that he would like an opportunity to settle matter with SS in India as he still has his family there, that there is no evidence that he has ever been physically attacked by SS or that any threats from SS has ever been carried out, that the applicant has presented no credible evidence that his life was at real risk before his left India or any evidence that several years later his life would still be at real risk if he were refouled to India, and agreed with the Director’s assessments based on objective COI of the availability of state protection and reasonable internal relocation to the applicant upon his return to India. 

11.  On 8 August 2017 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he set out the following grounds for his intended challenge:

(1) there was no reasonable basis for rejecting his claim on credibility;

(2) failure to consider the extended form of state acquiescence;

(3) failure to fully consider COI in assessing the risk to him if refouled to India;

(4) irregularity in the decision-maker being a different person than the interviewing officer; and

(5) no proper basis for considering that internal relocation is available to him.

12.  These are all to me the barest of assertions by the applicant which are not only inconsistent with what he represented to the Board at his appeal hearing but are also unsupported by any particulars or specifics from him, and that even high standards of fairness do not entitle him to just make the claim and then sit back and require the Court to look to see what possible grounds or basis which may exist for his intended challenge: see CH v Director of Immigration [2011] 3 HKLRD 101, while some of the complaints such as in ground (4) appears to me irrational as I fail to see why the applicant would want the same officer who rejected his claim to hear his appeal, or how he could be so prejudiced. 

13.  As for ground (3), upon examination of those COI listed and referred to by both the Director and the Board that they were perfectly entitled to arrive at their decision as they did in their assessment of the risk of harm to the applicant, and on the basis of their finding that the property dispute that he had with SS in India was of private and personal nature without any involvement of the state or the police, I find this complaint of the applicant wholly without any merit.  

14.  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.

15.  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