KANDASAMY KARTHIKEYAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

1.  The Form 86 is amended on the Court’s own motion, and

2.  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 15 April 2021 for leave to apply for judicial review (the “leave application”) of the decision of the “Petition Term of the Immigration Department make a decision against me in my case (USM) on 31 March 2021”.  There is no such entity known in the Immigration Department.  Enquiries with the authorities revealed that the Applicant had made a non-refoulement claim with the Immigration Department which was refused by the Director of Immigration (the “Director”) by his Notice of Decision dated 25 April 2018 (the “Notice”), and his appeal against that Notice was dismissed by the decision of the Torture Claims Appeal Board / Non-refoulement Petitions Office (the “Board”) dated 31 March 2021 (the “Decision”).  It is obvious that the Applicant’s intention is to seek judicial review of the Decision of the Board dated 31 March 2021.  Accordingly, on the Court’s own motion his Form 86 was amended making the Board the proposed respondent, the Director the interested party and the Decision the decision in respect of which relief is sought.

The Applicant’s claim

2.  The Applicant is an Indian national, now aged 49.  His personal background, the factual background leading to the present application, the basis of his claim, the arguments he advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision.  The hyperlink to the Board’s Decision is included below[1] for reference.  In gist, he claims, if returned to India, he will be harmed or killed by members of the All India Anna Dravida Munnetra Kazhagam political party (the “AIADMK”) for driving his motorcycle into a crowd of AIADMK protestors.

3.  The Applicant’s case is that on 27 September 2014, he was driving his motorcycle home from the hospital after seeing his wife.  He was stopped and attacked by some AIADMK protestors as he drove past the end of the crowd of protestors (the “incident”).  He fell off his motorcycle and was tramped by the protestors.  He fled and returned home.  He did not report the attack to the police because despite seeing the attack on him the police at the scene did nothing to help him.  Then he came to Hong Kong on 24 October 2014 on business.  Prior to that, other than that incident he had no encounter with the AIADMK.  Four or five days into his trip, he was told by his wife that a group of people came to his home, asked for his whereabouts and threatened to kill him when he returned to India.  From the circumstances, he inferred that the visitors were from the AIADMK.  Then two days later, his wife told him that a police officer had visited his home and told her that members of the AIADMK had filed a First Incident Report (“FIR”) against him for creating disturbances and assault.  He had a perception that the police would side with AIADMK members because AIADMK is the ruling political party.  He feared he would be disadvantaged due to his lack of political connection.   Fearing that he will not have a fair trial and he will be harmed or killed by the AIADMK members, he overstayed in Hong Kong and sought non-refoulement protection.

The Board’s finding

4.  The Board seemingly accepted the Applicant’s factual case and assessed his claim on the basis of the facts as he asserted, except for his surmises and speculations.  It rejected his claim that the police would side with AIADMK members and that he would be disadvantaged through lack of political connection as his own perception and assumptions.  It found the injuries he suffered during the incident were not serious.  It found despite the threat to kill, the people who threatened him had no intention to actually kill him for if they had they would not have alerted him with the threat.  It found, obviously from the country of origin information, that the power and influence of the AIADMK party is not extensive as the party’s influence was in the state of Tamil Nadu and not where the incident occurred. It rejected the Applicant’s claim that he could not relocate to other parts of India to avoid the AIADMK members. 

5.  The Board found the applicant’s claim weak and the evidence insufficient to support his alleged fears based on his assumptions or perception.  It found the Applicant had failed to established that he would be at risk of harm from the AIADMK members upon his return to India.  It rejected the Applicant’s claim that he would not find fairness in the treatment of his case whether by the police or from the judicial process as purely based on his perceptions and assumptions.  In summary, despite having accepted the case as he asserted, the Board found the Applicant had failed to establish sufficient factual basis to support his claim for protection under any of the applicable grounds under the United Screening Mechanism (the “USM”).  Hence, it dismissed his appeal.

The legal principles applicable to judicial review

6.  The function 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.  In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[2].

Grounds for judicial review

7.  At the hearing, after the legal principles applicable to judicial review had been explained to him, the Applicant confirmed that he had no complaint about errors of law in the Decision, procedural unfairness or irrationality in the Decision and would leave it to the Court to scrutinize the Decision for those vitiating elements.  He accepted that the Decision is rational.  He said his problems is almost over and he is prepared to return to India, but needs to stay in Hong Kong for six to eight more months.  He offered no specific ground of review.  In the absence of any particularized grounds of application, the Court in a judicial review could only focus on errors of law, procedural unfairness or irrationality in the Decision sought to be reviewed. 

Overall scrutiny

8.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  The Board analysed the evidence carefully and tested it against common sense, inherent probability and the country of origin information.  It found his fears are all based on his perception and assumptions.  They are not genuine.  It found he had not established that he would a genuine and substantial risk of being subject to any proscribed mistreatment. Then, applying the law applicable to non‑refoulement protection under the USM to the above facts, the Board found that the Applicant had failed to establish the factual basis to support his claim for protection under any of the applicable grounds under the USM.  These are mixed findings of fact and of the law.  Insofar as they are finding of the law, they are absolutely correct.  Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law or procedural unfairness or that the Decision is irrational.  The Court could detect no error of law or procedural unfairness in the Decision.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge her burden of proving her fears and risks.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success. 

Conclusion

9.  For the above reasons, the Applicant’s leave application 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