RE RAMAN MUTHUCHAMY

CACV 52/2023, [2024] HKCA 276

On Appeal From [2023] HKCFI 244

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 52 OF 2023

(ON APPEAL FROM HCAL NO. 3579 OF 2019)

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JUDGMENT

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Hon Cheung JA (giving the Judgment of the Court) :

1)  The appeal

1.  This is an appeal by the applicant against the decision of Deputy High Court Judge K. W. Lung of 6 February 2023 in which he refused to grant leave to him to apply for judicial review.

2.  By written confirmation of the applicant dated 20 February 2023, the applicant consented to this appeal being dealt with on paper.  The applicant failed to lodge skeleton argument by the stipulated time as per directions of the Registrar of Civil Appeals dated 20 February 2023.  We would deem the applicant to have abandoned his right to rely on written submissions, and deal with this appeal on paper.

2)  Background

3.  The applicant is a national of India.  The applicant last arrived in Hong Kong on 5 April 2012 as a visitor but he overstayed.  The applicant made a torture claim application on 3 August 2012 and it was rejected by the Immigration Department on 11 December 2012.  Although the applicant applied for late filing of appealing such decision, the Torture Claims Appeal Board (‘Board’) rejected the late filing on 24 January 2013.  He then made a non-refoulement claim on 22 May 2013 on ground of cruel, inhuman or degrading treatment or punishment.  With the introduction of the Unified Screening Mechansim (‘USM’) in March 2014, the non‑refoulement claim was assessed on all applicable grounds.

4.  The basis of the applicant’s claim is that he would be harmed or killed by his wife’s brothers and their men who opposed the couple’s marriage on caste and religious grounds.

5.  The background facts have been summarized in the decision of the Judge at [5] to [6].

3)  The Director’s Decision

6.  The Director of Immigration (‘the Director’) decided against the applicant’s non-refoulement claim on 26 July 2018.  The decision covered Bill of Rights Article 3 (torture/inhuman treatment) risk (‘BOR 3’), Bill of Rights Article 2 (right to life) risk (‘BOR 2’), as well as other statutory and convention rights against persecution except torture (‘the Director’s Decision’).  

4)  The Board’s Decision

7.  The applicant appealed against the Director’s Decision to the Torture Claims Appeal Board (‘the Board’).  After a hearing held on 25 October 2019, the Board dismissed the applicant’s appeal on 25 November 2019 (‘the Board’s Decision’).

8.  The applicant initially claimed that after the marriage from the period 1996 to 2003, they had no trouble from the wife’s family.  Then he subsequently claimed that the wife’s family approached his family and asked for their whereabouts.  The Board held that it was doubtful that when the applicant was legally represented he did not mention that during 1996 to 2003 when the applicant and his wife lived in Pattukottai, members of the wife’s family asked for their whereabouts.  Even accepting that this could have happened, the applicant was still willing to take his wife and children back to the village in 2003 to care for his parents. The applicant was not concerned with any threats from the wife’s family members.  The Board accepted that the applicant was assaulted by his brother‑in‑law but it was not the police failure when the applicant was persuaded by his brother‑in‑law not to report the case.  The Board held that the applicant was inconsistent about the status of the criminal charge laid against him for assaulting his brother‑in‑law.  The Board had held that he tried to bolster his case by saying that upon his return he is liable for arrest, but at the same time, also saying in his supplemental claim form that he has already been convicted and sentenced for attacking his brother‑in‑law.  The Board further held that even if upon returning there is a risk that the brother‑in‑law will harm the applicant, internal relocation is available.  Given that the applicant has been absent from India for seven years, the Board held that it was unlikely that upon his returning his in-laws would still be looking for him.  The Board does not accept that the applicant will face arrest or detention upon his return, or that there is any real risk of harm due to contact with the police or criminal justice system regarding events in the past.

5)  The Judge’s decision

9.  The applicant filed his Form 86 without stating any grounds.  In his supporting affirmation, he stated that his country still has problems and that his life was still in danger so he cannot go back. 

10.  The Judge held on 6 February 2023 that there were no valid grounds by the applicant to challenge the Board’s decision.  There was no reasonably arguable basis to challenge the Board’s decision.

7)  Grounds of appeal

11.  In the applicant’s notice of appeal, he stated that the Board considered him to be an able body person and could be relocated to other parts of India and could find work to support himself.  He said this is not feasible because he had suffered injuries in a traffic accident so returning to India to find work is not feasible.

8)  Our view

12.  We are of the view that the appeal is without merits.  Internal relocation was only one of the matters considered by the Board.  More importantly, the Board rejected the applicant’s claim of risk on the grounds he relied upon.  In our view, the applicant had provided no reasonably arguable grounds for judicial review and had not shown any error on the part of the Judge. 

13.  Accordingly, the appeal is dismissed.