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

HCAL 2136/2024

[2025] HKCFI 336

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2136 OF 2024

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J U D G M E N T

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 29 October 2024 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.  The applicant asked for a hearing. However, he was absent at the hearing on 30 December 2024. I shall deal with his application on paper.

The applicant

3.  The applicant, aged 31, is an Indian. He was refused permission to enter Hong Kong on 20 June 2024 and he made a non-refoulement claim on the same day. The claim was made on the basis that, if refouled, he would be harmed or even killed by Hindus or Muslims in his locality due to a religious dispute.

4.  According to the applicant, he and his family are Christians. In around June or July 2023, the applicant and his family participated in a protest after a Christian church was attacked by Hindus and Muslims. Between mid-November 2023 and early February 2024, the applicant was attacked twice by eight strangers, during which they blamed him for attending the protest. Based on their attitude, the applicant believed that the assailants were the Hindus and Muslims in his locality. Although he tried to seek assistance from the police on both occasions, no action was taken by them. In March 2024, the applicant relocated to his friend’s home in New Delhi for 20 days, after which he went to stay in a temple. On 7 June 2024, the applicant left India for Thailand and China. Eventually he arrived in Hong Kong through the Macau Ferry Terminal on 20 June 2024.

5.  Given his previous dealings with the police and the fact that Christians are a minority in India, he believed that state protection would not be available to him. He also considered internal relocation not viable because Hindus and Muslims are in the majority throughout the country.

6.  Details of the applicant’s story can be found in paragraph 7 of the Director’s Decision dated 8 August 2024 (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”);

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”) and

d.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”).

8.  By way of the Director’s Decision, the Director dismissed the applicant’s claim on Persecution risk, Torture risk, BOR 2 and BOR 3 risk. The Director found that (i) the low frequency and intensity of past ill-treatment received by the applicant indicated a small future risk of harm upon his return to India [12]-[13]; (ii) the conduct of the Hindus and Muslims in his locality showed that they had no real intention to seriously harm or kill him [14]; (iii) the behaviour of the applicant indicated that the risk of harm was not as imminent as he claimed [15]; (iv) there was no evidence showing that the applicant would be targeted by the Hindus/Muslims nationwide or that he was of adverse interest from the Indian government [16]-[17]; (v) state protection would be available and that the malpractice of certain police officers could not be taken as the stance of the entire Indian police force [18]-[22]; and (vi) internal relocation would be viable [23]-[25].

The Board’s Decision

9.  The applicant appealed the Director’s Decision to the Board. On 21 October 2024, the Board conducted an oral hearing.

10.  The Board found the evidence given by the applicant unbelievable and that he was not a reliable witness [26]-[44]. In any event, even if his claim was accepted, he could resort to relocation to avoid such risks [45]-[54]. Furthermore, the dispute concerned was private in nature with no evidence of state involvement. Based on such findings, the Board rejected the applicant’s claim on Torture risk, Persecution risk, BOR 2 and BOR 3 risk [55]-[71].

11.  The applicant’s appeal was therefore dismissed and the Director’s Decision was confirmed.

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

12.  The applicant has filed Form 86 dated 14 November 2024 for leave to apply for judicial review of the Board’s Decision.

13.  The applicant relied on the grounds, insofar as the Board is concerned, attached to Form 86 as follows:

(1)  the Board has reached a wrong decision and the decision is not reasonable and fair;

(2)  right to life under BOR 2 risk was not attended to;

(3)  the adjudicator had placed too much weight on the country of origin information (“COI”) without taking into account of his personal background and experience; and

(4)  the Board should have allowed his appeal against the Director.

DISCUSSION

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

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

16.  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.”

17.  The Board, for the reasons given above, found that the applicant’s claimed risks were unfounded. Those grounds under paragraph 13 are the applicant’s bare assertions or personal comments without any evidence in support.

18.  There is no valid ground from the applicant to challenge the Board’s Decision.

19.  There is no reason that the Court should interfere with the Board’s finding of the facts.

20.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

21.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.