SALEATH RAJ ARUL JOTHI v. TORTURE CLAIMS APPEAL BOARD

HCAL 614/2018

[2020] HKCFI 1918

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 614 of 2018

     Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 33-year-old national of India who entered Hong Kong illegally on 4 March 2008 and was arrested by police on 6 March 2008.  After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by the family of his deceased wife who blamed him for her death.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Sembar, District Sivagangai, India.  After leaving school he worked as a courier, and courted his former schoolmate Stella from the same village.

3.  In 2007 he intended to marry Stella, but when his marriage proposal was rejected by her parents due to their different caste and social status, the Applicant and Stella eloped from their home village to marry in Chennai in about September 2007.

4.  However, when her parents pleaded with her to return, Stella told the Applicant that she would just go and sort out the matter with her family, but thereafter the Applicant never saw or heard from her again, and two months later he was told by his father that Stella had committed suicide, and that her parents had blamed him for that by making a false charge against him to the local police.

5.  The Applicant therefore went to the police station in his home village to find out about the charge, but was detained there for interrogation for more than 3 weeks before he was released without charge with the assistance of a lawyer hired by his brother.

6.  To avoid further conflicts with Stella’s family, the Applicant returned to Chennai to stay with a friend, but when he heard that Stella’s parents had come to his parents’ home in the village looking for him with threats to kill him over their daughter’s death, he decided that it was no longer safe to remain in India, and so on 25 February 2008 he departed for China, and from there he later sneaked into Hong Kong, and upon being arrested by the police, he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 11 July 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

7.  Whilst released on recognizance pending determination of his claim, the Applicant was again arrested on 20 January 2010 for undertaking unauthorized employment, and for which he was subsequently convicted and sentenced to prison for 14 months.      

8.  By a Notice of Decision dated 26 January 2017 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 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”).

9.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his deceased wife’s family upon his return to India as low due to the absence of past ill-treatment from them, that in the absence of any official involvement in their threats that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information 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 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 India away from his home district in large cities such as Delhi or Mumbai where it would be difficult if not impossible for his deceased wife’s family to locate him.

10.  On 6 February 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 7 February 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 6 April 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

11.  In its decision the Board accepted the Applicant’s claim of fear of harm from his deceased wife’s family who blamed him over her death, but found it was at worst a personal dispute between them without any official involvement that state/police protection would be available if needed as well as reasonable internal relocation for him to safely move to other parts of India to re-establish his life and work without any risk of being located by his wife’s family that his claim for non-refoulement protection failed on all applicable grounds.

12.  On 11 April 2018 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, and in his supporting affirmation of the same date he merely asserted that he was not satisfied with the decision which was very unreasonable in that the Board merely relied on web reports and some Indian authorities reports without considering the source relevant to his claim in India but without providing any particulars or elaborations in support of his assertion.  Nor did he request any oral hearing for his intended challenge.  As such and in the absence of any error of law 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 him to challenge the finding of the Board.

13.  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. 

14.  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 the Applicant’s 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.     

15.  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.

16.  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