KUMARAN CHANDRAKUMAR v. TORTURE CLAIMS APPEAL BOARD

HCAL 836/2021

[2025] HKCFI 6394

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 836 OF 2021

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 / the Applicant being absent in open court;

1.  Extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 15 February 2019 be refused; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 48-year-old national of India who arrived in Hong Kong on 4 February 2015 as a visitor with permission to remain as such up to 18 February 2015 when he did not depart and instead overstayed, and on 23 February 2015 he surrendered to the Immigration Department and raised 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 Dravida Munnetra Kazhagam (“DMK”). He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Maravanpatti, Pudukkottai District, India. After leaving school he ran a grocery store in his home district, got married and raised a family with 2 children, and supported DMK regularly attended their local meetings and activities.

3.  In 2006, during the local election in the state of Tamil Nadu, the supporters of AIADMK and DMK got into a fight in which the Applicant also took part, and thereafter when AIADMK had brought charges against the DMK supporters, the Applicant fled from his home village to take shelter in an uncle’s place in a neighboring village before moving on to various other cities, and in 2008 he departed India for Singapore until 2010 when he returned to his home village in India.

4.  However, as the threats from those local AIADMK supporters still persisted, the Applicant in October 2010 again departed for Singapore, but on this occasion he also faced hostilities from the local Tamil community in Singapore that eventually in 2013 he decided to return to India.

5.  Soon he realized that the threats from the local AIADMK supporters still persisted, and after reading about news of the killing of a DMK leader by the AIADMK people, the Applicant felt it was no longer safe to remain in India, and so on 4 February 2015 he departed for Hong Kong where he subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 26 October 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 30 November 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 decision, the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real and substantial risk of him being harmed or killed by those local AIADMK supporters upon his return to India 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 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 but somehow referred to what appeared to be about Pakistan with its population of 205 million people spread across a vast territory of 796,000 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 Karachi (a Pakistani city) where it would be difficult if not impossible for anyone to locate him.

8.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 27 November 2018 with his lawyer from DLS before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board as well as submissions made on his behalf by his lawyer. On 15 February 2019, his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision[1], the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from any local AIADMK supporters due to any political reasons that caused him to leave his country to come to Hong Kong to seek protection, nor is it accepted that he had faced any harm from any AIADMK supporters or any evidence that he had been specifically targeted for harm due to any political reasons, that in any event in the absence of any official involvement that state or police protection would be available to the Applicant upon his return to India, and having acknowledged that the Director in his assessment of internal relocation had mistakenly referred to Pakistan instead of India that the Board proceeded to make its own assessment that reasonable internal relocation alternatives are available to the Applicant upon his return to India for him to move safely to other parts of the country away from his home district without any risk of being located by anyone that his claim for non-refoulement protection failed on all applicable grounds.

10.  On 7 June 2021, the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or his supporting affirmation of the same date other than some bare assertions that the decision was unreasonable but without providing any details or particulars or elaboration as to how it was so, nor did he request any oral hearing for his application.

11.  By then the Applicant was also seriously out of time with his application, as Order 53 rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made.

12.  As the last day of the three-month period for him to file his Form 86 fell on 15 May 2019, the Applicant was therefore more than 2 years late with his application, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

13.  In the Applicant’s case, a delay of more than 2 years must be considered as substantial and inordinate, for which he did not provide any explanation or reasons in his Form or affirmation, and as the record shows that the Board’s decision was sent on the same day of 15 February 2019 to the Applicant’s then legal representation from DLS without being returned through undelivered post, I am unable to see any good or valid reason for his such serious delay.

14.  As for the merits, if any, of his intended application, as noted above that the Applicant has failed to put forward any proper ground for his intended challenge, 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 merits in his intended application either.

15.  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.

16.  In the Applicant’s case, the Board rejected his claim 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 as well as submissions from his lawyer, 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.

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

18.  In the premises, and having considered the decision of the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness therein or any failure on its part to apply high standards of fairness in its consideration and assessment of the Applicant’s claim.

19.  For all these reasons, I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his such serious delay, I refuse to extend time and accordingly dismiss his leave 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