CHINNATHAMBI SUNDARAPANDIAN v. TORTURE CLAIMS APPEAL BOARD

HCAL 1690/2020

[2025] HKCFI 3926

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1690 OF 2020

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 the Applicant in open court / the Applicant being absent in open court;

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 49-year-old national of India who arrived in Hong Kong on 10 March 2012 as a visitor with permission to remain as such up to 24 March 2012 when he did not depart and instead overstayed, and was arrested by police more than 1 year later on 28 June 2013. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim for protection on the basis that if he returned to India he would be harmed or killed by members of the political party All India Anna Dravida Munnetra Kazhagam (“AIADMK”) as he supported their rival Dravida Munnetra Kazhagam (“DMK”). He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Thanjavur, Thanjavur District, Tamil Nadu, Chennai, India. After leaving school he worked as a construction worker and electrician to make his living, got married and raised a family with 2 children in his home district, and supported DMK regularly attended their local meetings and activities including putting up the party posters and setting up meetings in his home district.

3.  One day in May 2011 while driving a senior DMK member to Chennai for certain party’s activities, the Applicant witnessed a car crashing into a truck on the highway, and so he stopped his car and got off to inspect the situation, and noticed that one of the victims was a AIADMK senior member, and when the police and ambulance arrived, the Applicant then got back on his car and to continue with his journey to Chennai.

4.  Later when he heard that the AIADMK senior member had died from the accident, and that there were rumours that the AIADMK people were suspicious of the car crash was a plot by the DMK people to murder their senior member, and as he happened to be at the scene on that day, the Applicant started to become worried that the AIADMK people would accuse him of being involved in that car crash and would go after him to kill him in revenge, and so he fled to Thiruvananthapuram to take shelter in a friend’s place, and on 10 March 2012 he departed India for Hong Kong, and upon his subsequent arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 22 December 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  By a Notice of Decision dated 29 January 2016 and a Notice of Further Decision dated 30 March 2017 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”).

6.  In his decisions the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from the AIADMK people upon his return to India as low due to the absence of any past ill-treatment from them, that there is no evidence of any adverse interest of the AIADMK people in him at all let alone any intention to harm or kill him over the car crash accident other than his own suspicion or speculation, that in any event 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 areas of the country away from his home district in large cities such as Delhi where it would be difficult if not impossible for anyone to locate him.

7.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decisions, and for which he attended an oral hearing on 19 May 2017 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 9 July 2020 his appeal was dismissed by the Board which also confirmed the Director’s decisions.

8.  In its decision[1] the Board accepted the Applicant’s claim of fear of harm from the AIADMK people but found no evidence of any adverse interest of the AIADMK people in him or any intention of them to harm or kill him over the traffic accident other than just rumours or his own suspicion and speculation, nor was there even such attempt by any of them to go after him or any ill-treatment being inflicted by any of them on the Applicant at all prior to his departure of India or any political reason for them to do so given that he was just a low ranking member of DMK, and that in any event in the absence of any official involvement that state or police protection would be available to the Applicant upon his return to India if resorted to that the Board concluded that his claim for non-refoulement protection failed on all the applicable grounds.

9.  On 20 August 2020 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 his supporting affirmation of the same date in which he just stated that he is not satisfied with the decision which he considers as unreasonable but without providing an particulars or elaboration as to why he does so, 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 of the Board’s decision.

10.  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.

11.  In the Applicant’s case, the Board rejected his claim for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim as well as proper assessment of the relevant COI on the political situation in India, 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.

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

13.  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.

14.  For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss his 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