RE SHASHANK

CACV 134/2019

[2019] HKCA 957

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 134 OF 2019

(ON APPEAL FROM HCAL 1567 OF 2018)

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J U D G M E N T

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Hon Lisa Wong J (giving the Judgment of the Court):

The appeal

1.  This is an appeal by the abovenamed applicant, Mr SHASHANK, against the order made by Deputy High Court Judge K W Lung (“Judge”) on 14 March 2019 refusing him leave to commence judicial review proceedings to quash the decision of the Torture Claims Appeal Board (“Board”) given on 26 July 2018 (“Board’s Decision”), which dismissed the applicant’s appeal against the rejection by the Director of Immigration (“Director”) of his non-refoulement claim (“NRF Claim”) by a notice of decision dated 10 January 2018 (“Director’s Decision”).

Basis and allegations in support of NRF Claim

2.  The basis of the NRF Claim made by the applicant, a national of India now aged about 33, is a fear of being attacked or even killed by the family of his girlfriend (“Manisha”) if he should return to India. Such alleged fear is said to arise out of the following circumstances:

(1)  The applicant was born in Delhi, India to the Rajput caste.

(2)  He received 15 years of education, attaining a qualification called “Graduation Bachelor of Science”. 

(3)  He lived in Sonepat in the State of Haryana.

(4)  In 2006, the applicant met Manisha who belonged to the Jat caste. As the majority caste in Haryana, the Jat is powerful and influential. The applicant knows that some of Manisha’s relatives were in politics.

(5)  They fell in love. However, in Haryana, a marriage between a Jat and a person from another caste is prohibited. A breach of the custom may result in the couple being killed by the Jat’s family.

(6)  One day in February 2006, Manisha’s brother (“Harish”), together with 4 or 5 of his friends, approached the applicant to warn him to stop dating Manisha or else it would not be good to him.

(7)  The applicant, however, continued to see Manisha. A few days later, Harish and his friends assaulted the applicant with wooden sticks, with Harish yelling that he had told the applicant to stop seeing Manisha but he did not listen. The applicant’s right ankle was fractured. He was hospitalised overnight. The fracture took 4 months until June 2006 to heal. The applicant did not report the assault to the police because Manisha’s family was rich and such kind of incidents were so common in India that the police would not take them seriously. Though they were unable to meet while he was recuperating at home over those 4 months, the applicant and Manisha stayed in contact by telephone.

(8)  After the applicant’s recovery, at Manisha’s suggestion, the pair left Sonepat together for Indore in the State of Madhya Pradesh in about early 2007. 

(9)  The applicant found a job in Indore. The young couple cohabited, without getting married, in an area called Pardesi Pura in Indore.

(10)  Then, one day in the end of 2007, the applicant’s father telephoned the applicant to tell him that Harish and Manisha’s father had come to their home to ask for his and Manisha’s whereabouts. Manisha’s father claimed to have a good relationship with the former Chief Minister of Haryana, with whose help he could locate them anywhere in India. He threatened to kill the applicant and Manisha if he found them.

(11)  The applicant and Manisha continued to live in Pardesi Pura until August 2010, during which time they never encountered Manisha’s family.

(12)  What happened in August 2010 was that the applicant received a call from his office, which told him that the police had come to make enquiries about, and demanded rudely for the residential address of, the applicant. Thinking that the police was looking for him because of Manisha’s family’s complaint, the applicant hanged up. The applicant quit his job and went into hiding for several months during which he had not had any encounter with Manisha’s family.

(13)  The applicant and Manisha then moved to Govind Puri in Delhi in about late 2010 or early 2011.

(14)  However, Manisha went missing after telling the applicant over the phone that she was going to the market. The applicant did not report Manisha’s disappearance to the police because he thought the police was already looking for him at Manisha’s family’s instigation.

(15)  On the next day, the applicant read from a local newspaper that a girl matching Manisha’s description had been kidnapped the night before and that the matter was under police investigation.  The applicant believed the girl to be Manisha. He sought advice from a friend whose brother was a policeman in Delhi. The applicant learnt that Manisha’s family had bribed the police to arrest him and that the police was looking for him.

(16)  Fearing that, if arrested, he would be beaten up badly by the police and he would lose his sanity or life, the applicant kept changing his abode within Delhi and other cities around Delhi between 2011 and 2013, during which period he had no news of Manisha. Nor did he have any encounter with her family.

(17)  The applicant learnt from his family and friends in the beginning of 2013 that Manisha was dead. He believed that her family had killed her because they arranged for a funeral right away without inviting anyone and they did not agree to an autopsy. He further believed that Manisha’s family had bribed the police to conclude that Manisha died by suicide.

(18)  The applicant went back to Sonepat in June 2013. While he was visiting his parents one day in December 2013, his father said it was better for him to leave India because Manisha’s family would not spare his life.

(19)  That night, while the applicant was buying food at the market, he was recognised by some of Harish’s friends. They assaulted him. One of them said he would call Harish and Harish would then take the applicant into the jungle and kill him there. The applicant struggled and managed to escape home. He made no report to the police which had already been bribed by Manisha’s family to find him. He took some money from his parents and returned to Delhi. 

(20)  He bought a plane ticket for Hong Kong. Upon his departure, he was questioned for about 20 minutes by the Indian immigration about the purpose of his trip to Hong Kong, though they eventually let him go. 

(21)  When the applicant spoke to his father over the phone in 2015, he was advised that Manisha’s family was still trying to locate him; that his life would be in danger in India; and that he should not go back.

Arrival in Hong Kong and lodgment and processing of NRF Claim

3.  The applicant arrived in Hong Kong on 21 December 2013 as a visitor with permission to stay for 14 days until 4 January 2014. 

4.  The applicant overstayed since 5 January 2014. He initially sought asylum from the office of the United Nations High Commission for Refugees in Hong Kong and was issued with an Asylum Seeker Certificate on 6 January 2014. He then surrendered to the Immigration Department on 13 January 2014. He lodged the NRF Claim by written representation on 3 June 2014. On 12 December 2017, he lodged his completed non-refoulement claim form (“NRF Claim Form”), which was prepared with the help of the Duty Lawyer Service (“DLS”).

5.  In processing the NRF Claim, the Director’s representative(s) conducted a screening interview (“Interview”) on 5 January 2018 with the applicant who was assisted by a lawyer assigned by the DLS.

Director’s Decision

6.  The Director’s Decision covered all applicable grounds: torture risk[1], persecution risk[2], “BOR 2” risk[3] and “BOR 3” risk[4].  

7.  The Director found the NRF Claim unsubstantiated. He gave very detailed reasons which can be summarised as follows:

(1)  The low frequency and intensity of past ill-treatment from Manisha’s family and their men indicated a low future risk of the applicant being harmed or killed by them upon his return to India. Manisha’s family knew of her relationship with the applicant in as early as 2006. Since that time, the applicant was assaulted only twice, once in February 2006 and once in December 2013. Those assaults caused the applicant neither fatal nor life threatening harm, which showed that their real intention was no more than to stop the relationship from continuing.

(2)  After the first attack on the applicant, Manisha remained free to communicate with him. They were even able to elope to Indore.  The applicant then spent 3 years in Indore and another 3 years in Dehli without encountering Manisha’s family at all. The applicant lived uneventfully and was not found by Manisha’s family after he returned to Sonepat from June to December 2013. If Manisha’s family had been as powerful or influential or had bribed the police as claimed by the applicant, they should have found the applicant. As it turned out, the applicant only bumped into Harish’s friends in December 2013 at a purely chance encounter. 

(3)  The applicant’s claimed fear that he was wanted by the police which had been bribed by Manisha’s family to locate him and that Manisha was killed by her family were assumptions he made based only on speculation and/or hearsay.

(4)  The applicant’s behaviour was inconsistent with a person genuinely in fear of his own safety because of his prohibited relationship with a Jat girl. He dated Manisha in an open manner. He even eloped with Manisha after the first assault in February 2006. He continued to live with Manisha in Pardesi Pura until August 2010 despite having been told in late 2007 that Manisha’s family was searching for, and threatening to kill, them. When they moved in about late 2010 0r early 2011, they chose Dehli which is geographically closer to Sonepat than Indore. Despite his assumption that Manisha had been killed by her family, he returned to Sonapat in June 2013 and visited his parents there in December 2013. In the meantime, he had obtained an Indian passport in as early as February 2009 but he did not leave India until December 2013.

(5)  The applicant never sought help from the Indian police on the assumption that Manisha’s rich family had bribed them.  There is, however, objective country of origin information (COI) showing that structured police forces are in place in India; that reforms have been and are on-going with positive results; and that the authorities in India had performed due diligence on their duties and are willing and able to offer sufficient protection to its citizens. There are also alternative avenues for seeking justice in India. The availability of reasonable state protection, if resorted to, would further lower or even negate the level of risk (if any).  

(6)  The applicant’s claimed fear of Manisha’s rich, powerful and influential family arose from a dispute that is essentially private and localised in nature. Reasonable internal relocation alternatives are available to the applicant in such a vast and populous country as India. It is not unduly harsh or unreasonable for an able-bodied adult like the applicant to relocate to other large cities say Patna or Mumbai. There is no evidence that Manisha’s family can or will mobilise the power or resources necessary to locate the applicant throughout India.

Appeal to Board and Board’s Decision

8.  The applicant appealed against the Director’s Decision to the Board on 23 January 2018.

9.  After a rehearing of the NRF Claim on 17 May 2018 at which the applicant, with the assistance of a Hindi and English interpreter, testified and answered questions by the Board, the Board confirmed the Director’s Decision and dismissed the applicant’s appeal on all applicable grounds for non-refoulement protection.

10.  More particularly, having noted “vastly inconsistent, confusing and implausible” claims made by the applicant in the NRF Claim Form, at the Interview and the hearing before the Board in respect of a number of key matters particularly the events after the applicant and Manisha moved to Indore (namely, the timing and details of the alleged visit by the police to the applicant’s office and the alleged telephone call by his office to the applicant; the alleged abduction and murder of Manisha by her family and the applicant’s subsequent actions; and the applicant’s return to Sonepat), the Board harboured serious doubt about the credibility of the applicant’s claims notwithstanding various mitigating factors raised by the applicant (such as mistakes due to nervousness, being not good with dates, memory loss etc).

11.  In short, the Board found that while it is plausible that the applicant had a romantic relationship with Manisha while he was a student, it was not satisfied on the evidence that he had been harmed or threatened by any members of Manisha’s family. Even if the Board were to accept that Harish and his friends physically assaulted the applicant in 2006 due to his budding romance with Manisha, it did not accept any of the applicant’s evidence regarding subsequent events. In the end, there was not a real risk that the applicant would face any of the proscribed harms should he return to India.

Application for leave for judicial review and Judge’s Decision

12.  By a Notice of Application for Leave to Apply for Judicial Review issued against the Director under HCAL 1567/2018 on 7 August 2018 (“Form 86”), the applicant sought leave to apply for judicial review of the Director’s Decision[5] and the Board’s Decision.

13.  By the affirmation in support filed on the same date, the applicant set out the grounds upon which he sought relief, which the Judge summarised at [11] of the Form Call-1 dated 14 March 2019, [2019] HKCFI 612 (“Form Call-1”):

“(1) there was no language assistance to him for the appeal;

(2) the Hearing Bundle was not read to him and there was no translation for it;

(3) the Director cherry picked the COI to rebut his claim;

(4) the Board’s Decision was not read or translated to him; and

(5) he did not understand the contents of the Board’s Decision.”

14.  The Judge explained the refusal of leave for judicial review of the Board’s Decision after an oral hearing at [15]-[19] of the Form Call-1 as follows:

“15. The applicant appeared before me. He confirmed that he considered that he had had a fair interview with the Immigration officer and a fair hearing before the Adjudicator.

16. The Adjudicator found against him on the facts of the case. The applicant therefore has no factual basis in support of his claim.

17. Grounds (1), (2), (4) and (5) fail as the applicant confirmed that he was able to understand English. He read the Board’s Decision himself and he understood it.

18. Ground (3) does not assist him. The Director and the Adjudicator have their discretion as to what weight should be given to the evidence. There is simply no evidence that they had any pre-conceived conclusion.

19. The applicant fails to show that he has a reasonable chance of success in his proposed judicial review.”

Appeal to Court of Appeal and grounds of appeal

15.  By a notice of appeal filed herein on 20 March 2019, the applicant appealed against the refusal of leave for judicial review on the following grounds:

“The Honourable Deputy High Court Judge was wrong in law in holding that there was no statement involvement and he failed to provide detailed reson (sic).”

16.  On 10 May 2019, the applicant lodged written submission by which he simply reiterated his story and the danger that he would face from his girlfriend’s family if he should return to India while at the same time asserting that his girlfriend (whom he previously alleged was murdered by her family) was still waiting for him!

17.  The applicant appeared in person at the hearing of the appeal on 20 August 2019. He had nothing useful to add to the notice of appeal or written submission.

Discussion

18.  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 role of the court in judicial review is not to re-assess the non-refoulement claim. The court will scrutinise 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 [2018] HKCA 524 at [14(1)].

19.  The applicant’s first ground of appeal mentioned in the notice of appeal is therefore entirely misconceived. We have set out in paragraph 14 above [15]-[19] of the Form Call-1, which contains the Judge’s reasons for declining leave for judicial review of the Board’s Decision. It can be seen that the Judge did not make any finding as to the presence or otherwise of state involvement. He could not have done so. It was not within his province to do so.

20.  The second ground appearing in the notice of appeal is likewise devoid of merits. The Judge did provide reasons for refusing leave. See against [15]-[19] of the Form Call-1. Those reasons were, in our view, sufficient in detail in light of the applicant’s confirmations to the Judge that he considered that he had had a fair interview with the immigration officer representing the Director and a fair hearing before the adjudicator of the Board; that he was able to understand English; that he read the Board’s Decision himself and that he understood it.

21.  As for the matters reiterated by the applicant’s written submission, as stated in paragraphs 7, 10 and 11 above, the NRF Claim failed on the facts at both stages of the Unified Screening Mechanism in that both the Director and the Board have largely disbelieved the factual allegations upon which the NRF Claim was based. The applicant has not advanced any ground of appeal, properly so called, that tackles the negative findings of fact.  Anyway, even if he had, an appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board (or that of the Director) afresh. The appellate court is concerned with whether the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong, which questions are to be considered in light of the grounds of appeal raised by the applicant. See again Nupur Mst v Director of Immigration at [14(2)].

22.  In the premises, the applicant did not in the notice of appeal or written submission before us identify any error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was plainly wrong. Nor can we discern any.

Disposition

23.  For these reasons, we see no basis to interfere with the Judge’s decision.Accordingly, we dismiss the appeal.