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Sonu Alias Sonu Rana v Torture Claims Appeal Board / Non-refoulement Claims Petition Office

Judgment Cited authorities 3 Cited in 1 Precedent Map Related
Vincent
Judgment Date23 April 2021
Neutral Citation[2021] HKCA 522
Year2021
Judgement NumberCAMP161/2020
Subject MatterMiscellaneous Proceedings
CourtCourt of Appeal (Hong Kong)
CAMP161/2020 SONU alias SONU RANA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 161/2020

[2021] HKCA 522

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 161 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 123 OF 2018)

________________________

BETWEEN
SONU alias SONU RANA Applicant
and
Torture Claims Appeal Board / Non‑Refoulement Claims Petition Office Putative Respondent

________________________

Before: Hon Kwan VP and Chu JA in Court

Date of Written Submission: 18 December 2020

Date of Judgment: 23 April 2021

________________________

J U D G M E N T

________________________

Hon Kwan VP (giving the Judgment of the Court):

1. On 17 June 2019, Deputy High Court Judge Bruno Chan refused the applicant’s application for leave to seek judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement protection claim[1].

2. On 15 May 2020, the applicant filed a summons for extension of time to appeal against that decision, as the 14-day period to file his appeal ended on 2 July 2019. The application was heard by DHCJ Bruno Chan on 16 July 2020 and dismissed on 20 August 2020[2].

3. On 11 September 2020, the applicant took out this renewed application in the Court of Appeal for extension of time to appeal against the judge’s decision of 17 June 2019.

4. The applicant is a national of India. He is 34 years old. He entered Hong Kong illegally in May 2012 and was arrested by police on 18 June 2012. He raised a torture claim on 21 June 2012, 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 from the Rajput caste.

The Director’s decisions

5. By a Notice of Decision dated 28 October 2015, the Director of Immigration (“the Director”) rejected the applicant’s claim on BOR 3 risk[3], torture risk[4] and persecution risk[5].

6. By a Notice of Further Decision dated 14 March 2017, the Director rejected the applicant’s claim on BOR 2 risk[6].

The Board’s decision

7. The applicant’s appeal was heard before the Board on 7 April 2017. The Board found that the applicant was the instigator of his own predicament and what had befallen on him did not attain the level of severity to come within the definition of torture. The Board further found no evidence that there existed a consistent pattern of gross, flagrant or mass violation of human rights in India or that there is a personal and real risk of the applicant being subjected to BOR 2 risk and BOR 3 risk on his return to India. It was also held that the dispute is private in nature and there was no state involvement. The Board also considered that the availability of state protection and internal relocation options in India would further reduce the risks of harm, if any. Thus, the Board dismissed the applicant’s appeal on 23 January 2018.

The intended judicial review

8. The applicant filed a Form 86 and an affirmation on 26 January 2018 to seek leave to apply for judicial review against the decision the Board. He put forward the following grounds for his intended challenge:

(1) irrationality in its failure to consider the concept of state acquiescence;

(2) procedural impropriety for making insufficient inquiry and for failing to provide adequate reasons for its decision;

(3) procedural impropriety/unfairness in its failure to investigate into the Country of Origin Information (“COI”) of India;

(4) irrationality in its failure to place weight on relevant information and/or selectively placing weight on irrelevant information;

(5) irrationality in its failure to consider a consistent system of human right violation in India;

(6) irrationality in its failure to consider if state protection exists in India;

(7) irrationality in placing weight on irrelevant matters or on inaccurate or incorrect facts;

(8) procedural impropriety in failing to call for psychological and/or psychiatric reports and/or evaluation;

(9) procedural impropriety in applying the incorrect standard of proof and for giving no reasonable basis for rejecting his claim on credibility or to consider the extended form of state acquiescence, and failing to fully consider the COI reports in assessing risk to the applicant;

(10) irregularity in the decision-maker being a different person than the interviewing officer; and

(11) no proper basis for consideration of internal relocation as there was fear that his life risks the threats of death if he was to return to his home country.

The judge’s decision

9. DHCJ Bruno Chan considered that the...

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