SATISHA BHADREGOWDA v. TORTURE CLAIMS APPEAL BOARD

HCAL 174/2019

[2021] HKCFI 3895

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 174 of 2019

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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 47-year-old national of India who entered Hong Kong illegally on 4 February 2010 and was arrested by police on 5 February 2010.  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 his creditor over his outstanding debts.. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born in Chikkamagalur District, Karnataka, India, and was raised in New Thippasandra, Bangalore after his family had moved there when he was small.  After leaving school he worked on various jobs in his home district, and in 2005 he started his own tailor shop by borrowing a loan from one of his wealthy customers Jayaram, with interests charged on the loan payable every month until its discharge.

3.  However, in November 2005 the Applicant started to have difficulties making his interest payments due to poor business of his tailor shop, and after being threatened by Jayaram and beaten by his men on several occasions, the Applicant fled to Mahim where he found a job as a salesman, but in late 2007 he was located by Jayaram and his men who then threatened that he would be killed next time if he still failed to repay his loan.  The Applicant therefore fled to Kolkata where he stayed for the next 3 years without incidents, but as he still feared of being located by Jayaram and his men, he therefore departed India on 28 January 2010 for China, and from there he later sneaked into Hong Kong, and upon his subsequent arrest by the police, he then raised his non-refoulement claim for protection, for which he completed a Supplementary Claim Form (“SCF”) on 24 July 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

4.  By a Notice of Decision dated 24 November 2014 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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”).

5.  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 creditor and his men upon his return to India 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 creditor to seriously harm or kill him other than to put pressure on him to repay his loan, that in any event it was a private monetary dispute between them 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 1.2 billion people spread across a vast territory of more than 3.2 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 Kolkata or Mumbai where it would be difficult if not impossible for his creditor to locate him.

6.  The Applicant then filed an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s Decision, and for which he attended an oral hearing on 10 August 2015 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 17 November 2016 his appeal was dismissed by the Board which also confirmed the Director’s Decision.

7.  In its decision the Board found that the Applicant’s evidence given at the hearing inconsistent to those given to the Director that it doubted the credibility of his claim of fear of harm form his creditor over his outstanding debts, which was in any event a private monetary dispute without any official involvement that state/police protection would be available to him upon his return to India as well as reasonable internal relocation for him to safely move to other areas away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.

8.  Meanwhile on 5 January 2017 the Director in his own initiative by a letter to the Applicant invited him to submit any additional facts which may be relevant to his claim on all applicable grounds including any other absolute and non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2”), and in the absence of any response from the Applicant, the Director by a Notice of Further Decision dated 9 February 2017 rejected his BOR 2 claim upon finding that the facts of his case did not engage the BOR 2 ground and that he had failed to establish a personal and real risk of being arbitrarily deprived of his life in violation of his BOR 2 right upon his return to India.

9.  The Applicant again lodged an appeal to the Board against the Director’s Further Decision, for which he attended another oral hearing on 31 October 2018 before the Board during which he again gave oral evidence and answered questions raised of his BOR 2 claim by the same Adjudicator for the Board.  On 10 January 2019 his appeal was again dismissed by the Board which also confirmed the Further Decision of the Director.

10.  In this decision the Board found in the absence of any additional information or material from the Applicant other than a regurgitation of his claim as before of fear of harm from his creditor over his outstanding debts that there is nothing in his claim to engage the BOR 2 ground, and that he had failed to show any risk of being deprived of his life under BOR 2 risk that his claim for non-refoulement protection also failed on the BOR 2 ground.

11.  On 18 January 2019 the Applicant filed his Form 86 for leave to apply for judicial review of this second decision of the Board, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)  Procedural impropriety in the Board failing to conduct sufficient enquiries as to whether the reforms and means of relief introduced in his home country would sufficiently protect him from BOR 2 risk;

(2)  Procedural impropriety in the Board failing to afford an opportunity for the Applicant to present his case in an oral hearing in breach of the principles set out by the Court of Appeal in ST v Betty Kwan & Anor [2014] 4 HKLRD 277;

(3) Procedural impropriety/irrationality in the Board failing to give reasons for its assessment of the lack of BOR 2 risk in his claim or sufficient basis to support its conclusion of lack of BOR 2 risk in his case;

(4) Error/misdirection in law in failing to take into account the considerations of psychological strain and threats to the Applicant personally or threats to him directly to kill him; and

(5) That there was no sufficient basis in the Board’s decision to conclude that he would not be at risk of being subjected to torture and/or CIDTP upon refoulement to India.  

12.  The Applicant did not request any oral hearing for his application so as to present and argue for his such grounds, of which are however just broad and vague assertions of his containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the Adjudicator had erred in the decisions, or in what way did the Adjudicator fail to properly apply the relevant law or principles in assessing his BOR 2 Risk given his own failure to adduce any further information or evidence in support of his claim based even on his own case at the highest was a private monetary dispute between him and his creditor without any official involvement that it simply does not engage the BOR 2 ground as correctly found by the Board, while his complaint of not being afforded any opportunity to present his claim in an oral hearing before the Board is plainly wrong when he did attend such an oral hearing on 31 October 2018 before the Board during which he was invited to present his claim under BOR 2 Risk but he merely repeated his case of not able to repay his debts and therefore would still be at risk of being harmed or killed by his creditor if refouled to his home country without providing any useful information or evidence in support of his BOR 2 claim.  As such I do not find any of these grounds reasonably arguable for his intended application, and in the absence of any error of law or irrationality or procedural unfairness in his processes before the Board on either occasions or in either of its decisions being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge either.

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 earlier decisions that the risk of harm in his 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