HCAL 560/2017
[2019] HKCFI 775
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 560 of 2017
BETWEEN
Koodalingam Koodalarasu
1st Applicant
Marimuthu Kalaiyarasi
2nd Applicant
Koodalingam Koodalarasu Lingana
3rd Applicant
and
Torture Claims Appeal Board /
1st Putative Respondent
Director of Immigration
2nd Putative Respondent
Application for Leave to Apply for Judicial Review
Following:
Order by Deputy High Court Judge Bruno Chan :
Leave to apply for judicial review refused.
Observations for the Applicants:
1. The 1st applicant (“A1”) is a 29-year-old national of India who arrived in Hong Kong on 27 October 2013 with permission to remain as a visitor up to 10 November 2013 when he did not depart and instead overstayed until he was arrested by police on 9 February 2014. After being referred to the Immigration Department for investigation, he lodged a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by the family members of his wife, the 2nd applicant (“A2”) as they disapproved their inter-caste marriage. He has since been released on recognizance pending determination of his claim.
2. On 11 September 2014 A2 also arrived in Hong Kong to join A1, and when she subsequently overstayed she lodged a non-refoulement claim on the same basis as A1’s and was then also released on recognizance. On 6 August 2015 their daughter, the 3rd applicant (“A3”) was born in Hong Kong, and subsequently a non-refoulement claim was also lodged on her behalf by her parents on the same basis.
3. A1 was born and raised in Abiramam Po, Agathariruppu, Ramanathapuram District, India and worked as a waiter after leaving school. In about 2008 he met A2 and they soon started a relationship. A2 came from Kudavasal, Tiruvarur District, Tamilnadu from a wealthy family where her parents were in the money lending business while her uncles were also businessmen, and the family was politically well-connected with the political party All India Anna Dravida Munnetra Kazhagam (“AIADMK”) with one of her uncles BG being a body guard of its minister.
4. As A1 was from the lower caste and as A2’s family wanted her to marry to a rich family from a similarly higher caste, A1 and A2 therefore kept their relationship a secret from her family and would usually meet in places far away from her home district.
5. However, one day in 2012 while they were meeting in Tiruvarur, they were seen by men working for her uncle BG in his factory there, and shortly thereafter A1 was asked to meet BG at his factory in Tiruvarur, and after he had confessed to his relationship with A2, BG demanded that he stopped seeing A2 and had his men held him and put his right hand to one of the machines in the factory where its blades caused severe injuries to two of his fingers. A1 was in great pain and fled the scene to a hospital for treatments, and then took shelter at his sister’s place in Tamilarasan for six months.
6. As a result A2 was severely reprimanded by her family and was warned to end her relationship with A1 or else she would be killed, to which she pretended to agree but secretly continued with her relationship with A1, and on 20 October 2013 they secretly married in a temple in Pothakuddi far away from A2’s home village, and eloped to Chennai to stay with a friend of A1 where he found a job working in his friend’s business.
7. One day on 26 October 2013 A1 accompanied his friend to go to Hong Kong for business. A few days later A2 was forcefully taken by her uncles and other members of her family back to her home where she was beaten by her parents and locked in a room. When A1 was told by the wife of his friend that A2 had been taken away by her family, he was warned that it would be dangerous for him to return to India, and so A1 overstayed in Hong Kong and subsequently lodged his non-refoulement claim.
8. After being imprisoned by her family for two months and when she promised never to see A1 again, A2 was eventually released by her family, and with the help of a friend she was able to leave India on 8 September 2014 to join A1 in Hong Kong, and subsequently also lodged her non-refoulement claim and later for A3 after her birth in Hong Kong, and upon obtaining legal representation from the Duty Lawyer Service, all three of them completed their Non-refoulement Claim Forms on separate dates but on the same basis and requested through their lawyer that their claims be considered together.
9. By a Notice of Decision dated 31 October 2016 the Director of Immigration (“the Director”) rejected the applicants’ claim on all applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of their absolute and non-derogable rights under the Hong Kong Bill of Rights (“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”).
10. In his decision the Director took into account of all the relevant circumstances of the applicants’ claims and assessed the level of risk of harm from A2’s family upon their return to India as low as in the absence of any reliable evidence of any official involvement that state or police protection would be available to them if resorted to, that objective Country of Origin Information (“COI”) show that the Indian government has taken active and effective measures against honour killings or threats of similar nature in the country with services and shelters provided to victims of such threats, and that COI also 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 A1 and A2 as able-bodied young adults with work experience to move with A3 to other area away from their home districts in large cities such as Delhi or Mumbai where it would be difficult if not impossible for A2’s family to locate them.
11. On 7 November 2016 the applicants filed their appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, for which they attended an oral hearing on 3 July 2017 before the Board during which both A1 and A2 gave evidence and answered questions put to them by the adjudicator for the Board. On 25 July 2017 their appeal was dismissed by the Board which also confirmed the Director’s decision.
12. In its decision the Board accepted some credence to the claims that A1 and A2 had entered into an inter-caste relationship without the consent of their families and that their subsequent marriage had incurred the anger of A2’s family due to lack of consent and A1’s being of lower caste, but regarded most of their claims of past harm, threats and violence to be fabricated as neither A1 nor A2 was impressive witness and were only able to express their claims vaguely with minimum details and were evasive, that neither of them made their claim for non-refoulement protection at their earliest opportunity in Hong Kong, and that even if their claims of fear of being killed by A2’s family were not far-fetched or fanciful, such risk could be eliminated or rendered negligible by the applicants relocating to Mumbai or other large city in India where it would be difficult if not impossible for A2’s family to locate them.
13. On 28 August 2017 the applicants filed their Form 86 for leave to apply for judicial review of the Board’s decision but no ground for seeking relief was given in the Form, and in their supporting affirmation of the same date A1 merely repeated their claim when he deposed that:
“ I and my wife’s life is in danger and if we were sent back to India they will definitely harm us. This because of the prevalent caste system in India and we belong to two different castes. I belong to a low caste and my wife high caste. We eloped and her high caste parents, relatives and community will definitely take revenge by killing me.”
14. As they did not request for an oral hearing for their application, accordingly no hearing was held, and up to now no ground has been put forward by them for their intended challenge.
15. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim, and that the proper for an 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 risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them, and that the court will not usurp their roles as primary decision makers, and in the absence of any legal error or procedural unfairness or irrationality being identified in their decision by the applicant, judicial review is not an avenue for revisiting the assessment by the Director or the Board in the hope that the court may consider the matter afresh: see Re Lakhwinder Singh [2018] HKCA 246 ; Re Daljit Singh [2018] HKCA 328 ; and Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400 .
16. Further, as it has been established by both the Director and the Board in their decision that the risk of harm from A2’s family is a localized one and that it is not unreasonable or unsafe for the applicants to relocate to other part of India, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.
17. In the premises and having proceeded to consider 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 applicants’ claim.
18. For these reasons I am not satisfied that there is any prospect of success in the applicants’ intended application for judicial review, and I accordingly refuse their leave application.
Dated the 22nd day of March 2019.
(NG Ka-wing)
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 Applicants :
If leave has been granted, the Applicants or their solicitors must:
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 Applicants propose to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
Sent to the Applicants on 22 March 2019
1st Applicant:Koodalingam Koodalarasu
2nd Applicant:Marimuthu Kalaiyarasi
3rd Applicant:Koodalingam Koodalarasu Lingana
Applicants’ ref. no.:
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 22 March 2019
Torture Claims Appeal Board / Non-Refoulement Claims Petition Office st Putative Respondent’s ref. nos.:
Director of Immigration nd Putative Respondent’s ref. nos.:
Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)
Form CALL-1