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HCAL 1761/2020
[2023] HKCFI 3225
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1761 of 2020
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BETWEEN
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James Chaman Lal Harish |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge To:
Leave to apply for Judicial Review refused.
Observations for the Applicant:
Introduction
1. This is the Applicant’s application by Form 86 filed on 2 September 2020 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 5 August 2020 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 27 February 2018 (the “Notice”).
2. The Applicant is an Indian national, now aged 57. He last entered Hong Kong on 24 May 2015 as a visitor and was permitted to remain until 7 June 2015. He overstayed and surrendered to the authorities on 12 June 2015. On 15 October 2015, he raised a non-refoulement claim.
3. In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. His claim was dismissed by the Director’s Notice. His appeal against the Notice was dismissed by the Decision of the Board. He now applies for leave to apply for judicial review of that Decision.
The Applicant’s case
4. The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer. In gist, he claims that he would be harmed by members of the political party Rashtriya Swayamsevak Sangh (“RSS”) for refusing to convert to Hinduism from his Christian faith.
5. The Applicant was born on 30 April 1966. He was raised in Pune, India, and practices Christianity along with his family. He has completed education up to primary four level. He has six siblings who are all residing in India. He is married and has one daughter and one son aged about 28 and 24 respectively at the time of completion of his NCF in January 2018. His wife and children are now residing in Delhi. He had worked as a driver in India and in Saudi Arabia. After his return from Saudi Arabia in 2013, he worked as a self-employed driver.
6. In his hometown, the Hindus disliked the Christians and shouted at them while they were praying. The Hindus were connected with RSS which was known for its support of Hinduism. The RSS is very influential and nobody could do anything against them.
7. In March 2015, while he, his family and a group of about 12 people were having a prayer session in his friend’s home, around 7 to 8 RSS members, recognizable by their orange headbands, came (the “first incident”). They threatened to kill the group if they continued praying and slapped the Applicant and other members of the group on the face with bare hands. The Applicant did not fight back or report the incident to the police due to the assailants’ powerful and influential status within the majority Hindu population.
8. In May 2015, about 10 to 12 people (4 to 5 of whom were involved in the first incident) came to the Applicant’s house (the “second incident”). They accused the Applicant of being the leader of the religious group and slapped him. One of assailants struck him on the head with a long iron rod which caused him bleeding. They took him outside his house and assaulted him until his son pulled him back into the house.
9. Feeling threatened, the Applicant and his family moved to a friend’s house which was about 8 to 10 km away from their home. After hearing from a neighbour that the RSS members were still looking for him, the Applicant decided to flee India. He departed for Hong Kong on 14 May 2015. His wife and son moved to Delhi.
10. While in Hong Kong, the Applicant was informed by his friend via WhatsApp that the RSS members were still looking for him and had threatened to kill him if he returns to India. He did not believe internal relocation within the country would be a viable solution because the RSS members can locate him.
The finding of the Board
11. The Board accepted the background of the Applicant as summarised in Paragraph 5 above. On the basis of authoritative and credible country of origin information (“COI”), the Board accepted that being a Christian minority, the Applicant had to endure some kind of rejection, discrimination or even harassment when his family relocated from the Defense cantonment into a suburban neighbourhood in Pune where the majority of his neighbours were Hindus.
12. The Applicant testified before the Board. The Board noted serious inconsistencies between his testimony and his previous statements in his NCF; and a lack of detail in his account about the two incidents on which his fear of harm is founded.
13. First, he claimed that the two incidents occurred sometime after 2013 (i.e. when he was 46 or 47 years old), which was also the year when his father retired from the Defense Academy and relocated to Pune with his family. Noting that the maximum retirement age applicable to the Applicant’s father was 60, on that evidence the Applicant would have to be born when his father was around 14 or 13 years old.
14. Second, in his NCF completed by him in January 2018, the Applicant said that his children were 24 and 28 years old at the time of the second incident. That is inconsistent with his testimony that his children were not attacked during the second incident because they were small, being only 13 and 14 years old, and his wife took them inside the house. He admitted the inconsistencies and said he could not remember their ages but agreed that they were adults at the time. The inconsistencies cast doubt as to when the second incident occurred and whether it did occur.
15. Third, he was unable to produce a copy of his friend’s WhatsApp message advising him not to return to India. His explanation was that his friend did not actually WhatsApp him, but called him on another friend’s mobile phone. Hence, he had no WhatsApp message to produce or record of the call from his friend on his own telephone. That is another significant change in his evidence.
16. Fourth, the Applicant was unable to provide accurate dates or a consistent account of what happened during the two incidents.
17. By reason of the above, the Board found in respect of the first incident, that even accepting something akin to what the Applicant had described may have taken place in the past, it did not take place shortly before he came to Hong Kong; but was not satisfied that the second incident had been proved.
18. In respect of BOR 2 Risk and BOR 3 Risk grounds, having rejected the Applicant’s evidence about the two incidents which are the events leading to his departure from India to seek international protection, the Board found he had failed to prove even to the low standard that there is anyone in India that has enmity against him to pose any threat to his well- being and/or that he has experienced any past conduct to substantiate his fear. On the basis of the COI, the Board was also satisfied that although the Indian law enforcement and judicial system is far from perfect, there is insufficient evidence to suggest that it falls below the standard expected from the international community such that the Applicant’s non-derogable right (even as a Christian) under BOR 2 Risk and BOR 3 Risk ground would be at risk of violation.
19. For the same reasons, the Board was not satisfied that there is a foreseeable, real, personal and present risk that the Applicant would be subject to severe pain and suffering, if refouled to India; or that the Indian government or any person acting as its representative would instigate, consent or acquiesce to such treatment being inflicted on the Applicant.
20. Likewise, the Board found the Applicant had failed to demonstrate that he is at Persecution Risk.
The legal principles applicable to judicial review
21. The function of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[5].
Grounds for judicial review
22. The Applicant did not put forward any grounds in his Form 86. In his supporting affirmation, he only asserted that he disagrees with the Decision. In effect, he is seeking to challenge the Board’s finding of fact primarily about the two incidents and that he would not be at risk of harm if returned to India. For reasons as explained in the preceding paragraph, this is not permissible in an application for judicial review. In the absence of proper grounds of application, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.
23. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; and observed a very high standard of fairness. The Board accepted his evidence about his background and about the discriminative atmosphere facing the Christian minority. However, it was not satisfied that the first incident occurred shortly before his departure from India for international protection or that the second incident had occurred. These two incidents are the base on which the Applicant’s fear is founded. It was on that basis that the Board found he had failed to prove the factual basis to support his claim for non-refoulement protection under any of the four applicable grounds under the USM. Basically, the Applicant had failed to discharge his burden of proving his fears and risks. This is a finding of fact solely within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. The Court could detect no errors of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board’s Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The Decision is utterly without fault. The Applicant’s claims are not reasonably arguable. There is no realistic prospect of success in the proposed judicial review.
Conclusion
24. For the above reasons, leave to apply for judicial review was refused.
Dated 11th day of December 2023.
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( Allen LEE )
for Registrar, High Court
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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 Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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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 Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 11/12/2023
James Chaman Lal Harish
Applicant’s ref. no:
Nil. |
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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 11/12/2023
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 10704/18/3/156/IN2050
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 216/18 (Formerly RBCZ 13933/15)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)
[3] Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol
[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383
[5] [2018] HKCA 524 at [14(1)]
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