RAMAN MUTHUCHAMY v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3579/2019

[2023] HKCFI 244

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3579 of 2019

Application for Leave to Apply for Judicial Review

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

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

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 29 November 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with his application on paper.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (“the Director”) is the interested party.

The applicant

4.  The applicant is a national of India.  He entered Hong Kong as a visitor on 5 April 2012 and was permitted to stay until 19 April 2012.  He did not depart and had overstayed since 20 April 2012.  On 6 May 2012, he was arrested by the police for overstaying.  He had previously raised a torture claim which was rejected on 11 December 2012.  The subsequent late filing of the notice of appeal was also dismissed by the Board.  Also, the applicant sought to apply for leave to apply for judicial review against the Board’s refusal but his application was eventually rejected by the Court of Appeal[1]. On 22 May 2013, he lodged a non-refoulement claim.  His claim was therefore assessed on all applicable grounds other than that on torture risk[2].

5.  The applicant claimed that, if refouled, he would be harmed or killed by his wife’s brothers Arputham and Peter, as well as their followers because of his inter-caste and inter-religion marriage with his wife.  In 1995, the applicant started a romantic relationship with his wife whose family was rich and politically influential.  Their relationship was first found out by his wife’s cousin who warned the applicant to stop as they were from different castes.  However, the couple did not comply and got married in June 1996.  They moved to live in another village, Pattukkotai and stayed there for six years. In March 2003, the couple returned to their home village.  The wife’s family knew about their return, leading to the applicant’s flee to Chennai.  He was able to visit his wife once every two months without encountering any problems.

6.  In January 2004, the applicant was assaulted by Arputham.  Yet, his report to the police was of no avail because Peter was a police officer.  He was even threatened by someone when he left the police station that he should not report to the police again.  During the screening interview, the applicant clarified that the man who threatened him was sent by a politician called Alagarsamy who was a good friend with his wife’s family.  Thereafter, he took on overseas employments in Dubai and Iraq.  In February 2012, the applicant returned home.  Later, his sister told him that Arputham yelled at her. Outrageous, the applicant assaulted Arputham.  He was arrested and assaulted in the police station following with a conviction and imprisonment for two weeks. After his release, in March 2012, some men visited their house, destroyed their properties and slapped his wife.  Despite the applicant having escaped, he knew that he could not get assistance from the police and thus he decided to flee to Hong Kong for protection.  Details of his claim are set out at paragraph 8 of the Notice of Decision dated 26 July 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

7.  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”); and

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”).

8.  In addition to the fear from his wife’s family, the applicant also submitted country of origin information (“COI”) which showed extrajudicial killings, ill-treatments within the police station, denial of fair trial and the potential disadvantage position as an internally displaced person.

9.  By way of the Director’s Decision, the Director dismissed his claim as the level of risk of harm upon his refoulement was assessed to be low.  In elaboration, the Director found that (i) the dispute with his wife’s family was private without state involvement and such threat, if any, was localized [15]; (ii) it had been 22 years since he eloped with his wife and 6 years since he assaulted Arputham.  It was likely that they no longer had adverse interest in him [16]; (iii) the ill-treatments by the police officers were individual acts which did not support the assertion of state acquiescence [17]; (iv) state protection would be available to him [18]-[20]; and (v) internal relocation was a viable alternative [21].

The Board’s Decision

10.  The applicant appealed the Director’s Decision to the Board.  On 25 October 2019, the Board conducted an oral hearing for his appeal, during which he testified with the assistance of an interpreter [25].

11.  The Board probed into the material aspects of the applicant’s claim. Before the Board, the applicant confirmed that the only reason of fear was from his wife’s family and Alagarsamy [35].  As to his court case, the applicant stated that his case was not completed and that he was out on bail because of his friend’s intervention [37].

12.  Having considered the evidence, the Board made the following findings. The Board accepted the existence of their inter-caste and inter-religion marriage.  Nevertheless, on the applicant’s own evidence, they were able to live trouble free in Pattukottai and he was willing to bring his family back to their home village in 2003.  This indicated that the applicant did not have a real fear of risk of harm [44].  The Board further accepted that the applicant was assaulted once by one of his wife’s brothers in 2004.  However, it refused to accept that the police would not assist him as the applicant was pressurized by the brother not to pursue the matter [45].

13.  Insofar as the applicant’s claimed charge was concerned, the Board accepted that he had assaulted the brother.  However, the applicant provided inconsistent accounts as to the status of the case.  In these premises, while the Board accepted that he was arrested, charged, convicted and sentenced to prison, it concluded that this case had come to an end and there would not be outstanding legal proceedings against the applicant [46].

14.  Meanwhile, the Board refused to accept that his wife was assaulted nor did it accept that his house was destroyed as, on the applicant’s evidence, his wife remained in the same house for three more years [47].  Besides, the Board accepted that the applicant had encountered some risk of harm from the brothers and their associates in the past which showed that he might face some risk of harm in the future.  However, it also found that the alleged relationship between his wife’s family and the politician was tenuous and that the applicant was able to avoid these harms by relocating to other areas [48]-[50].

15.  The Board then concluded that, while it accepted the applicant’s version of past events and that the applicant might have experienced harm amounting to torture while in police custody for his assault charge, the availability of internal relocation and the finding that there was no outstanding legal proceedings against him showed that he would not face any real risk of harm upon refoulement [51]-[52].  As to the alleged police brutality, the Board found that the available evidence did not establish that it was so widespread or frequent that the applicant would face a real risk of such ill-treatments without any particular circumstances that would bring him to the attention of the police [68].

16.  For the above reasons, the Board rejected the applicant’s claim and dismissed his appeal.

Application for leave to apply for judicial review of the Board’s Decision

17.  The applicant has filed Form 86 dated 2 December 2019 for leave to apply for judicial review of the Board’s Decision.

18.  In his affirmation in support of his application, the applicant said his problems are still there and it is not safe for him to return to his country.

DISCUSSION

19.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its 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).

20.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

21.  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.”

22.  The applicant has not been able to raise any valid reason to challenge the Board’s Decision.

23.  The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

24.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

25.  I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I 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