LAKSHMANAN ADAIKKALAM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1414/2019

[2024] HKCFI 1918

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1414 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 3 May 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.  The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, I shall deal with his application on paper.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.  The applicant, aged 34, is an Indian. He entered Hong Kong as a visitor on 12 March 2016 and overstayed since 27 March 2016. He surrendered himself to the Immigration Department on 30 March 2016. The applicant made a non-refoulement claim on 3 February 2017. The claim was made on the basis that, if refouled, he would be ill-treated by his girlfriend’s father (“Ubaidullah”), who was a member of the Legislative Assembly from Dravida Munnetra Kazhagam party (“DMK”).

5.  According to the applicant, his girlfriend was his schoolmate at high school. He was a Hindu while she was a Muslim. Due to their difference in religion, they had been keeping their relationship secret, as both their creeds did not approve marriage with people from another religion. After high school, the applicant went to college to further his study. He later quitted and left for Singapore to work as a marine trade worker in 2010.

6.  One day in around 2014, while the applicant was still in Singapore, he received a call from his girlfriend, informing him that Ubaidullah was forcing her to accept an arranged marriage. Ubaidullah did not approve their relationship despite being aware that the applicant was willing to convert to Muslim. The applicant therefore returned to India immediately with the intention to propose to his girlfriend’s family. Two to three days after his return, he started to receive phone calls threatening him to stop meeting his girlfriend, failing which he would be killed. One evening within a week after his return, he was hit from the side by a jeep while driving his motorcycle. He recognised the driver of the jeep was a man working for Ubaidullah and believed that this was a deliberate attack on him. He was hospitalised for about 10 days and took 3-4 months for recovery. During his hospitalisation, his family informed him that Ubaidullah kept calling and visiting his home. Ubaidullah also blamed the applicant for causing his daughter to reject the arranged marriage and threatened that he would not be able to escape next time.

7.  Fearing that he might be harmed by Ubaidullah, the applicant relocated to the homes of different relatives. During this period, Ubaidullah kept looking for him at his home and vowed to kill him. The applicant was therefore advised by his family to leave India for his safety. He left for Macau on 1 March 2016. He was deported back to India after being denied permission to land. He stayed at his agent’s home and left India for Hong Kong on 11 March 2016.

8.  During his last contact with his family in mid-February 2018, he was informed that Ubaidullah continued disturbing them because his daughter still refused to get married.

9.  The applicant did not report the matter to the police because Ubaidullah was a member of the Legislative Assembly, so that the police would not take any action in view of his political influence. He also considered internal relocation within India not viable because Ubaidullah could utilise the extensive network of DMK to locate him.

10.  Details of the applicant’s story can be found in paragraph 7 of the Director’s Decision dated 20 April 2018 (“the Director’s Decision”).

The Director’s Decision

11.  The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

12.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that (i) the low intensity and frequency of past ill-treatment from Ubaidullah indicated that the applicant did not face a real and imminent risk of harm upon his return to India [12]-[16]; (ii) state protection is available to him upon his return [18]-[21]; (iii) internal relocation is viable [17], [22]-[23] and (iv) the applicant’s case failed to meet any of the requirement under BOR 2 and BOR 3 risk [24]-[28], Persecution risk [29]-[33] or Torture risk [34]-[36].

The Board’s Decision

13.  The applicant appealed the Director’s Decision to the Board. On 17 December 2018, the Board conducted an oral hearing. During the hearing, the applicant produced a card showing that he returned to Singapore for work and received a training in 2016. He returned to India before leaving for Macau and Hong Kong because Ubaidullah’s underlings were in Singapore [23]-[25].

14.  Having considered the applicant’s evidence, the Board found that he did not give consistent or truthful evidence. His reason for quitting his work in Singapore was not credible and seemed to have been made up at the spur of the moment. In any event, from the evidence disclosed, the Board was of the view that the applicant was not at risk because all along, apart from the jeep incident, there was a lack of confrontation by Ubaidullah, while the verbal threats were merely hearsay evidence from his family members. Besides, Ubaidullah was no longer a member of the Legislative Assembly. Even if he was still a DMK member, his influence should be limited to southern India, so that the applicant could simply relocate to northern India or return to Singapore. Furthermore, state protection is also available according to the Country of Origin Information [31]-[42].

15.  Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirement under Torture risk [45]-[51], BOR 2 and BOR 3 risk [52]-[57] or Persecution risk [58]-[60]. The Board therefore dismissed the applicant’s appeal and confirmed the Director’s decision.

Application for leave to apply for judicial review of the Board’s Decision

16.  The applicant has filed Form 86 on 24 May 2019 for leave to apply for judicial review of the Board’s Decision.

17.  In his affirmation in support of his application, the applicant has raised the grounds below.

(1)  The Board failed to consider his fear that he will face real risk upon his return to his country as shown in the COI.

(2)  The Board failed to have sufficient consideration and inquiry into the COI.

(3)  The Board failed to give reasons for assessment of BOR 2 risk, BOR 3 risk and had not sufficient basis to conclude that there will not be BOR 3 risk.

(4)  There is no sufficient basis to say that he will not be subjected to Torture risk and BOR 3 risk.

DISCUSSION

18.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

19.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

20.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

21.  For the reasons the Board has given above, the Board did not accept the applicant’s evidence on the facts in support of his claim. It further considered state protection being available to him and internal relocation alternative being viable.

22.  Those grounds under paragraph 17 are the applicant’s bare assertions or personal opinions without any evidence in support. It is clear that the Board had taken into consideration of all the applicable risks before it came to its conclusion to dismiss the applicant’s claim.

23.  There is no reason that this Court should interfere with the Board’s finding of the facts.

24.  The applicant therefore fails to show that he has any realistic prospect of success in his intended judicial review of the Board’s Decision.

CONCLUSION

25.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I 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