RAMASAMY BALAMURUGAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 488/2022

[2025] HKCFI 675

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 488 of 2022

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;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 16 June 2022 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 1 June 2022 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 28 June 2018 (the “Notice”) refusing his application for non-refoulement protection.

Background

2.  The Applicant is an Indian national. He last entered Hong Kong on 13 September 2010 as a visitor and was permitted to stay until 27 September 2010. He overstayed. He was arrested by the police for overstaying on 13 October 2010 and referred to the Immigration Department. On 15 October 2010, he made a torture claim (the “Torture Claim”) under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. His application was rejected by the Director on 27 September 2013. He did not appeal. The decision of the Director became final.

3.  On 18 September 2013, he made a non-refoulement claim under the Unified Screening Mechanism (the “USM”). In due course, his non-refoulement claim was assessed on all three remaining applicable grounds under the USM, namely: BOR 3 Risk[1]; Persecution Risk[2]; and BOR 2 Risk[3]. His application was rejected by the Director’s Notice. His appeal was dismissed by the Board’s Decision. He now applies for leave to apply for judicial review of that Decision.

The Applicant’s case

4.  The following account of the Applicant’s case is mainly based on the information in the torture claim form (“TCF”) prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer. In gist, he claims, if returned to India, he will be harmed or killed by his girlfriend’s father (“girlfriend’s father”) who objected to his relationship with his daughter (the “daughter” or “girlfriend” as the context requires) and by his girlfriend’s husband whom she subsequently married (“the husband”).

5.  The Applicant, now aged 53, was born and raised in Puthagaram Post, Perugavalanthan, Mannargudi TK, Tiruvarur Dist, Tamilnadu, India. He is single. His father and two siblings are living in India. He had received 12 years’ formal education and had 18 years’ working experience.

6.  His girlfriend’s father and the Applicant’s father are friends and members of Dravid Munnetra Kazhagam (“DMK”). His girlfriend’s father was also a member of the parliament representing the Applicant’s local area. He was very influential.

7.  The Applicant and his girlfriend had developed a relationship in 1986 when they were about 15 years old. In 1998, his girlfriend’s father discovered their relationship when trying to arrange his daughter’s marriage to another person. Her daughter refused because she wanted to marry the Applicant. His girlfriend’s father was angry and advised the Applicant to give up his relationship with his girlfriend. The Applicant refused.

8.  One day in March 1998, his girlfriend’s father sent seven to eight gangsters to threaten to kill the Applicant if he did not cease his relationship with his daughter. A week later, the Applicant went to file a complaint against the father with the police, but the police refused to register the complaint. Later, he was arrested by the police because his girlfriend’s father had made a report against him for troubling his daughter. With the assistance from the village council, the Applicant was released after a detention of ten days. Since then, whenever the Applicant met his girlfriend’s father or the gangsters on the street, they threatened to kill him if he stayed in the country.

9.  In late 1998, the Applicant’s father relocated him to Singapore. One day in April 1999, the Applicant met the father’s relatives in the market. They threatened him saying that he would face a greater danger in Singapore than in India.

10.  In May 2005, the Applicant returned to India. One month later, when he was riding a motorbike on the street, the same gangsters knocked him down with their bikes. He fell unconscious. His leg was injured. He was hospitalized for seven days.

11.  After his recovery, he moved to Tirupur to work in his friend’s garment company from August 2005 to June 2007. Upon his return to Puthagaram, he maintained contact with his girlfriend. After their continued relationship was discovered by his girlfriend’s parents, the Applicant’s father relocated the Applicant to Singapore again to avoid the risk of harm. Thereafter, the Applicant stayed in Singapore and Malaysia with short trips back to India until his entry to Singapore was refused in November 2009. Eventually, out of his fear of the father, he left India in 2010 and came to Hong Kong without telling his girlfriend.

12.  His girlfriend’s father told the Applicant’s brother that he would kill the Applicant because his daughter would not marry anyone else other than the Applicant. The husband also told the Applicant’s brother that he would kill the Applicant, if the Applicant returned to India, because the Applicant may jeopardize the marriage between him and the girlfriend. Subsequently, the Applicant was told by his father that his girlfriend had married the husband, who was a district councilor of Anna Dravida Munnetra Kazhagam.

13.  The Applicant did not believe the Indian authorities and police could protect him, as the father was a very powerful person. He did not believe internal relocation would be viable, as the father could locate him throughout the country through his powerful network.

The finding of the Board

14.  The Board found significant inconsistencies in the Applicant’s account as to how the motor bike incident in 2005 occurred. In his TCF, he said he was knocked down by the gangsters on their motor bikes, but in the first screening interview, he said he was knocked by the gangster on their car from behind and he fell unconscious. The Board could not accept the incident was a deliberate assault from the father’s associates as the Applicant claimed.

15.  The Board rejected his claim about the threat from the father’s relatives in Singapore. It found he had been threatened as he alleged he would not have stayed in Singapore for six more years and visited it again three more times. He also gave inconsistent evidence as to whether he knew where his girlfriend’s father’s relatives lived.

16.  The Board also found that the conflict between the Applicant and the father arose because his daughter’s refusal to marry the husband. Now that his girlfriend had married the husband, the conflicts between him and the father or the husband were resolved.

17.  On the basis of the objective country of origin information (“COI”), the Board considered that even if the Applicant’s case was accepted, reasonable state protection would be available to him in India and he could further avoid the perceived risk by internal relocation as the risk was localised in his home area. Hence, the Board came to the conclusion that there are no substantial grounds for believing there is a real risk that the Applicant will be harmed or killed by the father or the husband upon his return to India. It therefore dismissed his appeal against the decision in the Director’s Notice.

Legal principles applicable to judicial review

18.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[4].

Grounds for judicial review and discussion

19.  In his supporting affirmation, the Applicant advanced the following grounds:

(1)  the Director’s and the Board’s decisions are unreasonable; and

(2)  the Director and the Board failed to fully consider the Applicant’s claim but determined it based on reports found on the internet and some Indian authorities.

20.  However, after going over the Board’s Decision with him, the Applicant agreed with the Board’s Decision that he is not at risk of harm because his girlfriend had married. As his submission contradicted his grounds of application, he was invited to make a statement under affirmation. He said under affirmation that he had no more risk of harm. His source of fear has been removed because his girlfriend, now ex-girlfriend, has married. He and his ex-girlfriend had not contacted each other since he left India for Hong Kong. He has no fear of harm and it is now safe for him to return to India. His statement under affirmation confirms the finding of the Board. Hence, he has no arguable grounds of application.

Conclusion

21.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Court could detect no error of law in the Decision or procedural unfairness in the making of the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge his burden of proving his fears and risks. The Decision is utterly without fault. The Applicant’s statement under affirmation confirmed that the Board’s Decision is correct. The proposed judicial review has no realistic prospect of success. Accordingly, the Applicant’s application for leave to apply for judicial review is refused.

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