AMAN v. TORTURE CLAIMS APPEAL BOARD

HCAL 280/2024

[2024] HKCFI 1933

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 280 OF 2024

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:

1.  The Applicant is a 36-year-old national of India who arrived in Hong Kong on 21 March 2015 but when he was refused entry by the Immigration Department, he raised a non-refoulement claim for protection on the basis that if he returned to India he would be harmed or killed by his Hindu neighbour and fellow Hindu villagers in his home village and/or the local police for trying to convert his religion from Hinduism to Sikhism.

2.  The Applicant was born and raised as a Hindu in Village Kuralia, Ajinala Town, Amritsar District, Punjab, India. After leaving school he worked in the construction field, got married and raised a family with a daughter in his home district.

3.  In about 2011 he acquainted with some Sikh co-workers and became interested in their religion Sikhism, and started to attend some of their religious activities, but when it was discovered by his Hindu neighbour Sonu, an influential Hindu in his home village with political connection, who together with some of his fellow Hindu villagers accused the Applicant of betraying their religion by trying to convert to Sikhism, and attacked him with hockey sticks one day while he was on his home from work that the Applicant lost consciousness, and was subsequently taken to the hospital for medical treatments.

4.  After the incident the Applicant became concerned for his safety and kept a low profile in the village without further incidents, and in 2014 he started to resume attending some of the Sikh religious activities in his home village, but one day in July 2014 upon returning home from one of such activities, his neighbour Sonu came with several policemen and demanded for his arrest, and that some of the policemen fired gun shots from outside the Applicant’s house, but they eventually left after a crowd started to gather outside the house.

5.  After the incident the Applicant felt it was no longer safe to remain in India, and so he fled to Delhi, and from there he departed the country on 20 March 2015 for Hong Kong, and when he was refused entry by the Immigration Department, he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 17 April 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 3 July 2015 and a Notice of Further Decision dated 8 February 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”).

7.  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 his neighbour Sonu and other Hindu villagers or the local police upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that the Applicant has never actually converted his religion to Sikhism that there is no reason for Sonu or other Hinu villagers to harm or kill him or any reason for the police to continue to have any adverse interest in him given that he has never been arrested or charged for any offence and that he was able to leave the country without any problem, 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 or Kolkata where it would be difficult if not impossible for anyone to locate him.

8.  His subsequent appeals to the Torture Claims Appeal Board (“Board”) against those decisions of the Director were rejected and dismissed, but on 23 December 2021 he was granted leave by this Court to apply for judicial review of the Board’s decisions, and by a consent order dated 13 October 2022 the Board’s decisions were quashed and that the Applicant’s appeals be remitted to a differently constituted Board for fresh determination, and for which the Applicant again attended an oral hearing on 30 November 2023 with his lawyer from DLS before a different Adjudicator during which he again gave oral evidence and answered questions raised of his claim by the Adjudicator for the Board and with submissions made on his behalf by his lawyer, and on 22 January 2024 his appeal was dismissed by the Board which also confirmed the Director’s decisions.

9.  In its decision the Board accepted the Applicant’s claim of past threats of harm from Sonu and his people but found no evidence even in his own evidence that he had ever converted his religion to Sikhism and has in fact remained a Hindu up to the hearing that it is not accepted that there would still be any risk of him being harmed by his neighbours or fellow Hindu villagers after all these years since he left the country or that he would face any risk of being charged or prosecuted by the police or authorities over any such conversion, and that in any event in the absence of any official involvement in the threats from Sonu or the Hindu villagers that state or police protection would be available to the Applicant upon his return to India if resorted to as well as reasonable internal relocation alternatives for him to move safely to other parts of the country away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.

10.  On 6 February 2024 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation he put forward various grounds for his intended challenge, of which he confirmed at the hearing as follows:

(1)  That the Board erred in determining that there is no realistic prospect of success in his claim or appeal by placing an unnecessarily high threshold in determining the realistic prospect of success as his life and human rights are at stake;

(2)  That the Board’s determination against the Applicant’s claim was based on biased observations designed to reject his claim and that the basis of rejection lacked completeness and evidence;

(3)  That the Board failed to take the Applicant’s unique situation into account fairly and sequentially;

(4)  That the Board rejected the Applicant’s case without looking at his evidence and merely threw in various blanket paragraphs and precedents that are relevant to claims for non-refoulement protection without any regard to his circumstances;

(5)  That the Board failed to properly consider the Applicant’s evidence of various incidents of him being attacked by his Hindu enemies as stated in his claim and merely threw in paragraphs of precedent to blindly avoid considering or analyzing his personal circumstances together with the general situation in India with the existence of a consistent pattern of gross, flagrant or mass violation of human rights which would be relevant and therefore prevent the Applicant from returning to India safely;

(6)  That the Adjudicator erred in his decision-making by not considering any COI that are on the Applicant’s political grounds that Sonu had used the Indian authorities illegally to put pressure on him and failed to see the facts that he was refused to file a report at the police station due to the power of Sonu’s connection with the authorities; and

(7)  That the Adjudicator failed to consider every single piece of evidence in the Applicant’s case and merely cherry-picked the ones that he would like to consider that the Adjudicator failed to consider the totality of the evidence of the Applicant’s case.

11.  These are however either just some bare and vague assertions of the Applicant containing a few key words or phrases but without any relevant or necessary particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or how did the Board place an unnecessarily high threshold in determining the realistic prospect of success of his claim or fail to properly or sufficiently consider the evidence of his case, or in what way was the Board biased in its determination of his claim or that the decision unfair or unreasonable, or how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant either in his application or at the hearing, I do not find any of them reasonably arguable 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 finding that the Applicant even on his own evidence has never actually converted his religion from Hinduism to Sikhism that there is no reason for any Hindu in his home village or the community to be upset about any religious conversion to want to cause him any harm or for the police or authority to take any action against him 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, 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 also been established by both the Director and the Board in their respective decisions 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, 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 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