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HCAL 123/2018
[2019] HKCFI 1015
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 123 of 2018
BETWEEN
| Sonu alias Sonu Rana |
Applicant |
| and |
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office |
Putative Respondent |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
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consideration of the documents only; or |
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consideration of the documents and the Applicant being present / absent in open court; |
Order by Deputy High Court Judge Bruno Chan:
Leave to apply for judicial review refused.
Observations for the Applicant:
1. The applicant is a 32-year-old national of India who entered Hong Kong illegally in May 2012 and was arrested by police on 18 June 2012. After he was referred to the Immigration Department for investigation, he raised a torture claim which was later taken as a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by the people of the Valmiki caste in his home village as he was of the Rajput cast. He has since been released on recognizance pending the determination of his claim.
2. The applicant was born and raised in Village Babiyal, City Ambala, Cantt, Haryana, India to the Rajput caste and where his parents and siblings still live. In his home village lived two castes, the Rajput caste and the Valmiki caste who tended to live on different side of the village away from each other due to longstanding conflicts between the two castes over various religious and political issues.
3. After leaving school the applicant started his own auto rickshaw business in Haryana and got married. However, his disputes with the Valmiki people started in 2006 when one of his friends was insulted by some of the Valmiki people which led to fights between him and his fellow Rajput friends and the Valmiki people requiring interventions of both their families and the police, but as the conflicts escalated when fights between the two groups became more vicious involving weapons such as wooden sticks and knives that the applicant was injured in some of them, and when eventually some of the fights ended with fatalities on both sides, the applicant felt that it was no longer safe to remain in Haryana and fled to Delhi and then from city to city until 2012 when he was advised by his family to leave India for his own safety, and so he departed on 13 April 2012 for China, and from there he later sneaked into Hong Kong and raised his torture claim, which was later taken as a non-refoulement claim and for which he completed a Non-refoulement Claim Form on 8 July 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.
4. By a Notice of Decision dated 28 October 2015 the Director of Immigration (“the 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 (“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”).
5. In his decision the Director took into account all the relevant circumstances of the applicant’s claim and assessed the level of risk of harm from those Valmiki people to the applicant upon his return to India as low due to the low intensity and frequency of past ill- treatment from them, that he was never personally or specifically targeted by the Valmiki people for attacks, that in the absence of 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...
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