LATHWAL NAVEEN v. TORTURE CLAIMS APPEAL BOARD

HCAL 1823/2018

[2022] HKCFI 912

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1823 of 2018

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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 34-year-old national of India who arrived in Hong Kong on 17 October 2014 as a visitor with permission to remain up to 31 October 2014 when he did not depart and instead overstayed, and on 6 November 2014 he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his paternal uncle and son over a land dispute in his home district. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Mundlana, Sonipat, Haryana, India. After leaving school he worked as a fireman and a farmer in his home district.

3.  In 2007 he inherited a farmland from his father in his home district, but which was coveted by his paternal uncle who offered to buy it from him, but when the Applicant refused to sell, his uncle and son for the next several years pestered and harassed and even threatened the Applicant over the land, and one day in 2014 his uncle’s son came with several men to the Applicant while he was working on farmland and beat him with punches and kicks until they were restrained by other villagers, but of which the Applicant did not go to the police.

4.  A few days later his uncle’s son and his followers came to the Applicant’s home looking for him, and when they could not find him, they demanded that his brother should persuade the Applicant to sell the land to them, and when his brother refused, they then beat his brother with wooden sticks, and threatened that they would kill the Applicant if he still refused to sell.

5.  The Applicant’s brother attempted to seek assistance from the police who then refused to help, and as the Applicant was fearful for his life, he then fled to Delhi to take shelter in a friend’s place, and on 16 October 2014 he departed India for Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 6 July 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”). 

6.  While being released on recognizance pending the determination of his claim, the Applicant was arrested by police on 13 March 2018 and 7 April 2018 for theft and for which he was subsequently convicted for both offences and was fined for the first one and sentenced to prison for the second offence for 2 months.       

7.  By a Notice of Decision dated 18 July 2018 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”).

8.  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 his uncle and son upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that it was a private family dispute over land 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 3.2 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 part of India away from his home district in large cities such as Delhi where it would be difficult if not impossible for his uncle or son to locate him.

9.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but for which he requested not to attend any oral hearing before the Board, and in acceding to his request the Board proceeded to deal with his appeal in his absence and on papers based on the materials and information previously submitted by him to the Director and available before the Board.  On 23 August 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.  In its decision the Board found inconsistencies and discrepancies in those materials and information previously submitted by the Applicant and available before the Board but which were not explained or clarified by the Applicant given his election not to attend any oral hearing or to give any oral evidence to substantiate his case that it doubted the credibility of his claim of fear of harm from his uncle and son arising from their dispute over his farmland, that he had for no good reason never sought any assistance from the local police over the alleged threats from his uncle and son, and that in any event that it was a private land dispute between the Applicant and his uncle without any official involvement that state/police protection would be available to him upon his return to India to negate any such risk that his claim for non-refoulement protection failed on all applicable grounds.    

11.  On 4 September 2018 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, and in his supporting affirmation of the same date he merely stated that he is not satisfied with the decision but without putting forth 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 reasonably arguable basis for his intended challenge.

12.  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.

13.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 29 - 73 of its decision based on the materials and information previously provided by him to the Director and available before the Board due to his decision not to attend his appeal hearing, 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 such finding of the Board.  

14.  Furthermore, the fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim if true is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, a decision also 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.     

15.  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.

16.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse 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