KARUPPANNAN MOHANRAJ v. TORTURE CLAIMS APPEAL BOARD

HCAL 1753/2024

[2026] HKCFI 2453

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1753 OF 2024

  Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 44-year-old national of India who arrived in Hong Kong on 23 December 2023 as a visitor with permission to remain as such up to 6 January 2024 when he did not depart and instead overstayed, and on 17 January 2024 he surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if he returned to India he would be harmed or killed by his paternal uncle and sons over their land dispute in his home district.  

2.  The Applicant was born and raised in Paramathi, Tamil Nadu, India.  After leaving school he worked as an electronic engineer in an electronic company, married his wife and raised a family with a son in his home district.

3.  In early 2023 he inherited a piece of land from his father’s estate in a nearby village, but which was coveted by his paternal uncle who in June 2023 secretly registered the land in his own name instead, and later when it was discovered by the Applicant who then confronted his uncle at his uncle’s home, and which led to a fierce argument during which his uncle and sons attacked him with wooden sticks that he suffered cuts and bruises all over his body until intervened by the neighbours, and before he was taken to the hospital for medical treatments, his uncle warned that he would kill him if the Applicant dared to pursue the matter.  

4.  As a result the Applicant became fearful for his life and fled from his home to hide in a temple before moving on to Noyyal Karur to take shelter in his in-laws’ home.

5.  However, later when he heard that his uncle and sons were looking for him everywhere, the Applicant felt that it was no longer safe to remain in India, and so on 23 December 2023 he departed for Hong Kong and subsequently raised his non‑refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 3 June 2024 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

6.  By a Notice of Decision dated 4 July 2024 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”).

7.  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 paternal uncle and sons upon his return to India as low due to the low intensity and frequency of past ill‑treatment from them, that there is no evidence of any real intention of his uncle to seriously harm or kill him other than to deter him from raising his claim for his land, that in any event it was a private land dispute between him and his uncle only and within their family 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 1.4 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 areas of the country away from his home district in large cities such as Mumbai where it would be difficult if not impossible for his uncle to locate him.

8.  On 12 July 2024 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 10 September 2024 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 25 September 2024 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision[1] the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted and rejected the credibility of his claim of fear of harm from his paternal uncle and sons over some land dispute between them that caused him to leave his country to come to Hong Kong to seek protection, that it is not accepted that there was any land dispute between the 2 of them in their home district at all, and concluded that that there are no substantial grounds for believing that the Applicant will face any risk of being harmed or killed by his uncle or members of his family or of any risk of harm of any kind arising from the claimed events upon his return to India that his claim for non-refoulement protection failed on all applicable grounds.    

10.  On 7 October 2024 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 or his supporting affirmation of the same date in which he just cited various applicable principles and that he has many objections and complaints about the decision but without providing any details or particulars or elaboration as to what they are.  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 of the Board’s decision.

11.  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.

12.  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 its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, 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 the finding of the Board.

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

14.  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.

15.  Moreover, the Applicant has recently by way of an affirmation and a written statement requested to withdraw his application as his issue in his home country has been resolved that it is now safe for him to return to India.

16.  As I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation that it is safe for him to return to his home country, I accordingly dismiss 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