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

HCAL 3239/2019

[2025] HKCFI 6327

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3239 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 the Applicant being absent in open court.

1.  The Form 86 be amended on the Court’s own motion; and

2.  Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 30 October 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Immigration Department dated 17 October 2019. In his supporting affirmation, he annexed a copy of a decision by the Torture Claims Appeal Board / Non-refoulement Petitions Office (the “Board”) dated 17 October 2019 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 30 April 2018 (the “Notice”), refusing his application for non‑refoulement protection. In the circumstances, it is manifestly clear that his intention was to seek judicial review of the Decision of the Board. Hence, on its own motion, the Court amended his Form 86 by substituting the ‘Board’ for the ‘Director’ to give effect to his intention.

The Applicant’s claim

2.  The Applicant is an Indian national. His personal background, the factual background leading to the present application, the basis of his claim, the arguments he advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision. The hyperlink to the Board’s Decision is included below[1] for reference. In gist, the Applicant claims that if returned to India, he will be harmed or killed by his uncle because of a land dispute.

3.  The Applicant’s case is that his grandfather had given more land to his father than to his uncle. The land is still registered in his father’s name. His uncle worked overseas as a driver. He returned to India every six to seven months. He wanted to build a house on the land. He attacked the Applicant twice in May 2014 and in June to July 2014. The Applicant did not suffer severe physical injuries. He reported the second attack to the police. The police warned his uncle and advised the Applicant to go to the local village council to resolve the dispute. On 3 November 2014, the Applicant arrived at Hong Kong as a visitor. He was arrested for overstaying. Then he lodged a non-refoulement claim on 31 May 2015. His family is still staying in the same area in India. Nothing eventful happened to them other than that his uncle’s wife had come to his home to fight with his mother once. He said his uncle targeted him instead of his father as he is the eldest son in the family and would inherit the land from his father. He believed he could not avoid the harm from his uncle by relocating because it would be easy for his uncle to locate him in India.

The Board’s finding

4.  The Board assessed the Applicant’s claim on the basis of the case as he asserted. It found the injuries suffered by him were minor and the police had warned his uncle about the attacks. It found there was no evidence that any public officials or persons able to wield the authority of the government and/or state had any connection with his claims; that the government and/or state and/or other authorities in India even knew about his plight, let alone acquiesced in ill-treating him; that his uncle or his associates had ill-treated him with an intention listed in the  definition of ‘torture’ in section 37U(1) of the Immigration Ordinance; that the alleged ill-treatment had any relevance to the interest and/or benefit of the Indian government; that the Applicant had a well-founded fear of persecution for one or more of the reasons enumerated in the 1951 Convention relating to the status of Refugees and its 1967 Protocol (“Convention reasons”); that the state of India was unwilling or unable to afford protection to the Applicant; and that the government of India was unwilling to help him for a Convention reason or for any other reason, that the Applicant had sought state protection apart from reporting on the second attack. It found the harm on the Applicant caused by his uncle is of low intensity and frequency and is also not as real and imminent as he had asserted.

5.  Applying the law applicable to non-refoulement protection to the finding, the Board was not satisfied that the Applicant had proved his entitlement to non-refoulement protection under any of the applicable grounds under the Unified Screening Mechanism. Hence, it dismissed his appeal against the Director’s Notice of Decision.

Grounds for judicial review

6.  The Applicant had not advanced any grounds of judicial review in his Form 86 or supporting affirmation. In the absence of specific grounds of application, the Court in an application for judicial review could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.

Overall scrutiny

7.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the Unified Screening Mechanism (the “USM”); the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board analysed the evidence carefully and tested it against common sense, inherent probability and the country of origin information. It assessed his claims on the basis of the factual case as he asserted, but found even on that basis the Applicant had failed to establish the factual basis to support his claim for non-refoulement protection under any of the applicable grounds under the USM. These are mixed findings of fact and of the law. Insofar as they are finding of the law, they are absolutely correct. Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law, procedural unfairness or that the Decision is irrational. The Court could detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge his burden of proving his fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.

Conclusion

8.  For the above reasons, the Applicant’s leave application is refused.

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