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HCAL 1752/2019
[2024] HKCFI 2159
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1752 of 2019
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BETWEEN
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Pravesh Kumar |
Applicant |
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and |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge K.W. Lung:
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 18 June 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 asked for a hearing. However, he was absent at the hearing on 19 June 2024 without prior notice to the Court. I shall deal with his application on paper.
The applicant
3. The applicant, aged 33, is an Indian. He last arrived in Hong Kong on 1 September 2014 and overstayed since 16 September 2014. The applicant was arrested on 11 January 2015 and he made a non-refoulement claim on 14 January 2015. The claim was made on the basis that, if refouled, he would be harmed or even killed by the family members of his ex-girlfriend because he had a pre-marital sexual relationship with her.
4. According to the applicant, he first met his ex-girlfriend in 2004 and started having a pre-marital sexual relationship with her in 2006, which was considered immoral in India. Subsequently, his ex-girlfriend’s father discovered their intimate relationship. One day in around April 2007, his ex-girlfriend’s father, who was armed with a gun, together with her cousin, threatened to kill him. The applicant managed to escape and went to his friend’s house, where he stayed for 2-3 days. Thereafter, he went to Delhi to work as a factory assistant. In around December 2007, his ex-girlfriend’s father discovered his whereabouts. Thereafter, he started relocating to various places, including his sister’s home and the home of his brother’s friend. Eventually, the applicant returned home in October 2010 because he missed his family.
5. One day, the applicant met his ex-girlfriend’s brother on the street, who death-threatened him not to meet his sister. The applicant then relocated away from his hometown to Ahmedabad in November 2010, where he worked as a kitchen helper for nearly two years. During that time, the applicant heard from his friend that a villager, who faced the same situation like him, was killed and put on the railway track as a warning to everyone in the village. Out of fear and upon the advice from his family, the applicant left India for China in around October 2012. During his stay in Mainland China, he visited Hong Kong on four separate occasions. By the end of 2013, the applicant returned to India, as he believed that the situation had improved. On 30 July 2014, the applicant left India for China again, asserting that he did so to avoid the threats to his life. On 1 September 2014, he arrived in Hong Kong and overstayed since 16 September 2014.
6. Meanwhile, the applicant had a female cousin who married a relative of his ex-girlfriend. In 2015, the applicant was informed by his sister that his cousin committed suicide because her husband harassed and beat her by reason that the applicant had ruined the life of his ex-girlfriend. The applicant had not sought assistance from the police because he did not want to tarnish the reputation of his ex-girlfriend. He also considered internal relocation not viable because he believed that his ex-girlfriend’s family would never forgive him and would try to catch him wherever he went.
7. Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 10 November 2017 (“the Director’s Decision”).
The Director’s Decision
8. The Director considered the applicant’s claim in relation to the following risks:
a. 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”);
b. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”);
c. 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”); and
d. risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);
9. By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that the low intensity and frequency of past ill-treatment from his ex-girlfriend’s family indicated a small future risk of harm upon his return to India [12]-[14]. The applicant’s behaviour of returning to his hometown after he fled and his delay in seeking non-refoulement protection also showed that the risk of harm was not as imminent as he claimed [16]. In any event, there was no evidence of state involvement in the matter [17].
10. Furthermore, (i) state protection would be available to the applicant [18]-[26]; (ii) internal relocation would be viable [15], [27]-[32] and (iii) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [34]-[39], Persecution risk [40]-[45] or Torture risk [46]-[50].
The Board’s Decision
11. The applicant appealed the Director’s Decision to the Board. On 7 November 2018, the Board conducted an oral hearing.
12. The Board considered the account of events given by the applicant unconvincing and lacked merits [43]. The Board did not accept that the applicant received threats from his ex-girlfriend’s family by reason of his premarital sexual relationship with her [44]. Furthermore, the applicant’s behaviour of returning to his hometown after he fled and his delay in seeking non-refoulement protection was inconsistent with that of someone genuinely in fear. There was also a discrepancy as to why the applicant had to return to India from China in late 2013 [45]-[55]. In any event, the applicant’s claim was based on bare assertions without any evidence in support and that his claimed threats had not reached the requisite level of severity [56]-[59].
13. Based on such findings, the Board was not satisfied that the applicant’s case met any of the requirements under Torture risk, BOR 2 and BOR 3 risk or Persecution risk [30]-[38], [65]-[72]. Furthermore, internal relocation would also be viable according to the country of origin information [61]-[64].
14. 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
15. The applicant has filed Form 86 on 25 June 2019 for leave to apply for judicial review of the Board’s Decision.
16. In his affirmation in support of his application, the applicant said he was not satisfied with the decision of the Immigration Department without raising any specific ground.
DISCUSSION
17. 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).
18. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.
19. 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.”
20. The Board had given its reasons in support of the Board’s Decision above. There is no valid reason from the applicant to challenge the Board’s reasons.
21. The applicant therefore fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.
CONCLUSION
22. I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.
Dated the 29th day of August 2024
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(M.O. WONG)(Ms)
for Registrar, High Court
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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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 29/8/2024
Pravesh Kumar
Applicant’s ref. no:
Nil |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 29/8/2024
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 9263/17/11/274/IN1742
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 2620/17 (formerly RBCZ 10330/15)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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