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HCAL 39/2018
[2019] HKCFI 601
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 39 of 2018
BETWEEN
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Sonu Kumar |
Applicant |
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and |
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Torture Claims Appeal Board |
1st Putative Respondent |
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Director of Immigration |
2nd Putative Respondent |
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 Bruno Chan:
Leave to apply for judicial review refused.
Observations for the Applicant:
1. The applicant is a 25-year-old national of India who arrived in Hong Kong on 11 December 2015 with permission to remain as a visitor up to 17 December 2015 when he did not depart and instead overstayed until 18 December 2015 when he surrendered to the Immigration Department, and subsequently raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his creditor for failing to repay his loan. He has since been released on recognizance pending the determination of his claim.
2. The applicant was born in Kukra, Uttar Pradesh, India where he and his family resided until 2000 when they moved to Rampuri, Muzaffara Nagar, Uttar Pradesh.
3. In 2012 when his sister was to get married, and in order to meet her wedding expenses, his father borrowed 1 million Indian Rupees from AK, a wealthy and influential man in their village with political connections, with the loan repayable by monthly instalments with interests.
4. In 2014 the applicant planned to study abroad in Singapore, and to fund his studies he and his father borrowed a further sum of 2.5 million Indian Rupees from AK repayable by monthly instalments with interests by his father, and so in April 2014 the applicant departed for Singapore for his studies.
5. However, towards the end of 2014 the applicant’s father was having difficulties keeping up with the monthly loan repayments to AK as he needed the money to meet the medical expenses of the applicant’s mother, and by May 2015 he fell behind with his loan repayment and pleaded with AK for further time, to which AK agreed to give him a further one month to make his payment.
6. One day in June 2015 when the applicant was back to India for his school holiday, AK with two men came to his home to collect the loan repayment, but when his father pleaded for more time to make payment, AK became furious and cursed at him, and when the applicant reproached AK by slapping him for being disrespectful to his father, he was assaulted by AK and his men with wooden sticks until the neighbours intervened and brought the applicant to hospital for treatments.
7. Upon his discharge from the hospital his father made a report of the attack to the police but was told that since his family owed AK money, they should settle the dispute with him in private.
8. Later on the same day when AK with his men again came to the applicant’s home demanding for the loan repayment, an argument broke out between him and the applicant’s family during which one of AK’s men shot the applicant’s uncle with his pistol. After AK and his men left, the applicant’s father called the police who arrived to take the uncle to the hospital where he later died from his wound.
9. For their investigation the police detained the applicant for questioning until the next day when he was released on bail. Concerned about his safety his father advised the applicant to leave their home village for the time being, and so the applicant went to stay at a friend’s place in Haryana for two months without any further incidents, but when he was later informed by his family that AK and his men were looking everywhere for him, the applicant therefore left India on 8 July 2015 for Singapore to resume his studies where he was advised by a friend to seek protection in Hong Kong, and so on 11 December 2015 he arrived in Hong Kong where he subsequently lodged his non-refoulement claim, for which he completed a Non-refoulement Claim Form on 25 August 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.
10. By a Notice of Decision dated 20 September 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 (“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”).
11. In his decision the Director took into account all the relevant circumstances of the applicant’s claim and found no substantial grounds for believing that his perceived fear is real and foreseeable due to the low intensity and frequency of past ill-treatment from AK, that 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 and highly educated young man to move to other part of India away from his home district in large cities such as New Delhi, Mumbai or Kolkata where it would be difficult if not impossible for AK and his men to locate him.
12. On 6 October 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 13 December 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board. On 22 December 2017 his appeal was dismissed by the Board which also confirmed the Director’s decision.
13. In its decision the Board found that the applicant was not a credible witness, that his evidence about the accounts of his claim were evasive, contradictory and incredible, and rejected all his claims that he had borrowed money from AK or that he was unwilling to return to India because of any well-founded fear of being harmed by AK, and concluded that he failed to show that there are substantial or any grounds for believing that he would be subjected to any real risk of harm under any of the applicable grounds if refouled to India.
14. On 8 January 2018 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for relief was given either in his Form or in his supporting affirmation of the same date in which he merely stated as follows:
” Currently I am detain in Castle Peak Bay Immigration Centre from long time. I don’t want to go back my country because my problem is not finish yet. I don’t want to get killed by other party in India. So in my hearty respect to you please look into matter and help me. I am really thankful to you for this act of kindness.” [sic]
15. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim where the proper occasion 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 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 Re Litoun Mounsy [2018] HKCA 537.
16. In the present case the applicant’s claim was rejected by the Board after making adverse findings against his credibility for the detailed analysis and reasons as set out in paragraphs 36 – 85 of the decision, of which the Board was entitled to do on the basis of the evidence and materials available before it, and in the absence of any legal error or procedural unfairness being demonstrated by the applicant, I do not find any reasonably arguable grounds for his intended challenge.
17. Furthermore, the fact that it has been established by the Director in his 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, a decision subsequently confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.
18. 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.
19. 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.
Dated the 10th day of September 2019.
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(NG Ka-wing) |
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for Registrar, High Court |
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 his 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 10 September 2019
Sonu Kumar
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 10 September 2019 Torture Claims Appeal Board
1st Putative Respondent’s ref. no.:
USM 8741/17/10/71/IN1652
Director of Immigration
2nd Putative Respondent’s ref. no.:
QA T/C 1975/17
(Formerly RBCZ/11153/17)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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