BANDELA VENU v. TORTURE CLAIMS APPEAL BOARD

HCAL 346/2019

[2022] HKCFI 1073

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 346 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;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 45-year-old national of India who entered Hong Kong illegally on 22 March 2008 and was arrested by police on the same day. 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 creditors and/or by a political party candidate over a local election dispute in his home village. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Pedamaddali, District Krishna, Andhra Pradesh, India. After leaving school he ran his own photo shop in his home village, got married and raised a family with a son.

3.  During the years between 1996 and 2003, he borrowed several loans from 2 local money lenders to develop his photo business, but by 2005 he started to default on his loans repayments due to financial difficulties, and were being chased by his creditors for repayments during which he had been threatened and beaten.

4.  Meanwhile in 2006 he participated in an election for the presidency of the village council in his home district, and while he did not win, he was blamed by one of the candidates from the political party Telugu Desam Party (“TDP”) for causing that candidate to lose the election, and for which threats were made by the local TDP supporters to kill the Applicant in revenge.      

5.  As a result, and given the threats also from his creditors, the Applicant became fearful for his life and fled to Kolkata, and from there he departed India on 29 November 2007 for Hong Kong but was refused entry by the Immigration Department, and was repatriated to India on 1 December 2007.

6.  Several weeks later on 10 January 2008 the Applicant again departed India but this time for China, and from there he later on 22 March 2008 sneaked into Hong Kong, and upon his arrest by the police he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 13 February 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

7.  By a Notice of Decision dated 28 March 2018 the Director of Immigration (“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”).

8.  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 perceived enemies upon his return to India as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there was no reliable evidence of any real intention of any of them to seriously harm or kill him, that in the absence of 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 Delhi where it would be difficult if not impossible for his perceived enemies to locate him.

9.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 15 October 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 18 January 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.  In its decision the Board found serious inconsistencies, discrepancies and contradictions in the Applicant’s evidence in the hearing regarding the central and basic details of his claims as to threats from his creditors and the TDP candidate, which was significantly different from those previously given by him to the Director that he was not considered as a witness of truth or that his claims for protection were credible, and the Board concluded that there is not a real risk that the Applicant would face any of the proscribed forms of harm upon his return to India that his claim for non-refoulement protection failed on all applicable grounds.   

11.  On 8 February 2019 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 or in his supporting affidavit of the same date in which he just stated that he rejects the decision as it disregarded his dangerous situation but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application. As such and in the absence of any error of law or irrationality 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 his intended challenge.

12.  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.

13.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 53 - 73 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, 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 to challenge the finding of the Board.  

14.  Furthermore, the fact is that it has been correctly established by the Director in his decision that the risk of harm in the Applicant’s claim if true is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, a decision also 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.

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