KANDASAMY RAMESH v. TORTURE CLAIMS APPEAL BOARD

HCAL 1647/2020

[2025] HKCFI 4845

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1647 OF 2020

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 51-year-old national of India who arrived in Hong Kong on 19 November 2009 as a visitor with permission to remain as such up to 3 December 2009 when he did not depart and instead overstayed, and was arrested by police on 14 December 2009. After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim for protection on the basis that if he returned to India he would be harmed or killed by certain local supporters of the political party All India Anna Dravida Munnetra Kazhagam (“AIADMK”) as he supported their rival Communist Party of India (Marxist”) (“CPI(M)”). He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Senchi, India. After leaving school he worked as a farmer to make his living, married his wife in 2005 and moved to her home village in Kurumbal, Tamil Nadu to raise a family with 3 children, and started to support CPI(M) regularly attended their local meetings and activities.

3.  After AIADMK lost a local election in June 2009 to CPI(M), some of their local supporters became vindictive towards the CPI(M) supporters, and one day when the Applicant together with some of his fellow CPI(M) supporters tried to enter a local temple to pray, they were stopped by a group of AIADMK supporters which led to a scuffle between them during which the Applicant was punched on the face and fell onto the ground whereupon the AIADMK fled from the scene.

4.  Thereafter the Applicant together with his 2 brothers filed a complaint to the local police against those AIADMK supporters and also sought help from the village elders, and when both sides subsequently attended a dispute resolution meeting before the elders, it broke into a heated argument which deteriorated into a fight during which one of the Applicant’s brothers suffered a broken hand.

5.  After the incident the Applicant fled to Madras to take shelter in a friend’s place, but when he was later told by his wife that those AIADMK supporters had come to his home in Tamil Nadu looking for him, the Applicant felt that it was no longer safe to remain in India, and so on 18 November 2009 he departed for Hong Kong where he subsequently overstayed, and upon his arrest by the police he then raised his non‑refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 26 November 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 31 December 2014 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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 decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from those local AIADMK supporters upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill him or any political reason for them to specifically target him for harm, that in any event it was a private and personal dispute between him and those local AIADMK supporters only without 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 2.9 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 where it would be difficult if not impossible for anyone to locate him.

8.  On 15 January 2015 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 4 September 2015 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 29 December 2016 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision[1] the Board accepted the Applicant’s claim of threats from those local AIADMK supporters over some dispute between them but found no reliable evidence of any real intention of any of those local AIADMK supporters to seriously harm or kill the Applicant or any political reason to specifically target him for harm, and that in any event it was a private and personal dispute between them only without any official involvement that state or police protection would be available to the Applicant upon his return to India if resorted to that his claim for non-refoulement protection failed on all the applicable grounds.

10.  Meanwhile the Director on 16 March 2017 on his own initiative invited the Applicant to submit any additional facts which he may consider relevant to his non‑refoulement claim on all applicable grounds for non-refoulement protection including any other absolute and non-derogable rights under the HKBOR including right to life under Article 2 (“BOR 2”), and in the absence of any reply or response from the Applicant, the Director by a Notice of Further Decision dated 6 April 2017 also rejected his BOR 2 Claim upon finding that he had failed to establish a personal and real risk of his absolute and non-derogable rights under HKBOR including right to life under BOR 2 being violated upon his return to India.

11.  On 27 April 2017 the Applicant again lodged an appeal to the Board against this Further Decision of the Director, and for which the Board did not find necessary to hold any further oral hearing and proceeded to deal with the appeal on paper based on the materials and information available before the Board, and by a Decision[2] dated 3 July 2020 the Board also dismissed this appeal of the Applicant upon finding that he had failed to prove on the facts as found that there is any genuine and substantial risk or any personal risk of irreparable harm under BOR 2 risk that he may face upon his return to India.

12.  On 12 August 2020 the Applicant filed his Form 86 for leave to apply for judicial review of this second decision of the Board, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date in which he just stated that he is not satisfied with the decision as unreasonable and without making proper assessment of his claim but did not provide any relevant or necessary details or particulars or elaboration as to how it is so, nor did he request any oral hearing for his application. As such, and in the absence of any error of law or irrationality 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 for his intended challenge of this second decision of the Board, or for that matter its earlier decision either.

13.  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.

14.  In the Applicant’s case, the Board rejected his claim for the thorough and detailed analysis and reasoning set out in both of its decisions after having heard him earlier in his oral evidence and his answers to questions raised of his claim in its first decision, and in the absence of any error of law or procedural unfairness in his process before the Board or in either of its decisions being clearly and properly identified by the Applicant, and that on the factual basis of even his own case that the Applicant’s claim simply did not engage the BOR 2 ground on to its limited scope, I do not find any reasonably arguable basis for the Applicant to challenge the finding of the Board in either of its decisions.

15.  Furthermore, the fact is that it has also been established by the Director in his decision 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, a decision also agreed and confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

16.  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 on all the applicable grounds.

17.  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