PATEL KAVIT ATMARAM v. TORTURE CLAIMS APPEAL BOARD

HCAL 350/2024

[2024] HKCFI 2059

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 350 OF 2024

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 39-year-old national of India who arrived in Hong Kong on 1 January 2019 as a visitor with permission to remain as such up to 15 January 2019 when he did not depart and instead overstayed, and was arrested by police more than 3 years later on 4 June 2022. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim for protection on the basis that if he returned to India he would be harmed or killed by his paternal uncle over their political differences and a land dispute within their family.

2.  The Applicant was born and raised in Dahanu, India. After leaving school he assisted his parents in their farming on their farmland which his father inherited from his grandfather, got married and raised a family with a son in his home district.

3.  In 2014 he went to work as a restaurant manager in Gujrat, returning home in Dahanu only for holidays, and on one such occasion in 2018 his paternal uncle who was not in good terms with him due to their political differences came to the Applicant to demand him to give up his future entitlement to his father’s farmland so that his uncle could then claim the land upon his father’s death, and when the Applicant refused, his uncle and followers attacked him by punching and kicking and also with a knife that the Applicant suffered cuts and bruises all over his body, and before they left, his uncle threatened that next time the Applicant would be killed if he still refused his demand.

4.  After the assault the Applicant became fearful for his life and fled with his family to Gujrat to take shelter in his in-laws’ home, but when he later heard that his uncle was looking for him everywhere, he felt it was no longer safe to remain in India, and so on 31 December 2018 he departed India for Hong Kong where he subsequently overstayed, and upon his subsequent arrest by the police more than 3 years later he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 4 August 2022 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  By a Notice of Decision dated 7 October 2022 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”).

6.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found material inconsistencies and discrepancies in his evidence that his claim of fear of harm from his paternal uncle over any land or political disputes that caused him to leave his country to seek protection in Hong Kong was found to be incredible, that his credibility was further undermined by his failure to raise his claim upon first arriving in Hong Kong until more than 3 years later and only after his arrest by the police, that in any event the level of risk of harm from his uncle and followers even if real upon the Applicant’s 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 of any real intention of his uncle to seriously harm or kill him other than to press him to give up his entitlement to his father’s land in what was essentially a private land dispute between him and his uncle within their family only 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 3 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 Jaipur or Kolkata where it would be difficult if not impossible for his uncle to locate him.

7.  On 21 October 2022 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 26 January 2024 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 9 February 2024, his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision the Board also found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from his paternal uncle over their family land dispute and political differences that caused him to leave his country to come to Hong Kong to seek protection, that in any event even if his claimed risk were real that it arose from a private land dispute between him and his uncle within their family only 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 alternatives for him to move safely to other parts 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.

9.  On 20 February 2024, 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 failed to assess the Applicant’s situation, and that the internal relocation alternative suggested by the Board was not reasonable as it would be unduly harsh for him to relocate within his home country; and

(2)  That the Board failed to carefully consider all the material facts and documents before it that it should have reached a different conclusion.

10.  These are however just some bare and vague assertions of the Applicant without any necessary or relevant 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 in what way did the Board fail to properly assess the Applicant’s situation or why the Board’s assessment of internal relocation alternative was not a reasonable one or how it would be unduly harsh for the Applicant to relocate within his home country, or what material facts or documents that the Board had failed to carefully consider so as to reach a different conclusion. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find either of them reasonably arguable 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 also been established by both the Director and the Board in their respective decisions that the risk of harm in his claim even 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.

13.  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.  Moreover, the Applicant recently on 16 May 2024 filed an affirmation requesting to withdraw his application as there is no longer any problem for him to return to his home country.

15.  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