VAITHILINGAM SIVARAJ v. TORTURE CLAIMS APPEAL BOARD

HCAL 456/2022

[2026] HKCFI 2794

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 456 OF 2022

  Application for Leave to Apply for Judicial Review

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

Following:

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 49-year-old national of India who arrived in Hong Kong on 12 April 2007 as a visitor with permission to remain as such up to 26 April 2007 when he did not depart and instead overstayed, and was arrested by police on 27 April 2007.  After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to India he would be harmed or killed by certain local supporters of the political party Dravidian Progress Federation Party (“DMK”) as he supported their rival All India Anna Dravidian Progress Federation (“AIADMK”), and after his torture claim was deemed to have been withdrawn upon his failure to return the necessary form in support of his claim, he then sought non-refoulement protection on the same basis.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in a village in Orathanadu Wattam, District Tanjore, Tamil Nadu, India.  After leaving school he worked as a tyres repairing worker in his home village, got married and raised a family with a son, and supported AIADMK regularly attended their local meetings and activities without holding any official post in the party.

3.  During the Council Election in 2007 in the Tanjore District, one day while he and his fellow AIADMK supporters were putting posters in the street for their party, they were attacked by some local DMK supporters but the Applicant managed to flee from the scene without any serious injuries.

4.  However, as he thereafter continued to receive threatening phone calls from those local DMK supporters, the Applicant became fearful for his life, and so on 12 April 2007 he departed India for Hong Kong where he subsequently overstayed, and upon his arrest by the police he then raised his torture claim, and after his torture claim was deemed to have been withdrawn he then sought non-refoulement protection, for which he completed a Supplementary Claim Form (“SCF”) on 23 March 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  While released on recognizance pending the determination of his claim, one day in 2008 the Applicant got into a heated quarrel with some fellow Indians somewhere in Kam Tin which deteriorated into a fist fight during which the Applicant struck and injured one of the men involved by the name of Mahesh who had to be taken to a hospital for medical treatments, and for which the Applicant was subsequently convicted of the offence of wounding with intent and was sentenced to prison for 40 months.

6.  Upon his subsequent release from prison, the Applicant heard that Mahesh had left Hong Kong and returned to India, but had sworn to kill him in revenge if and when the Applicant returned to India, and of which the Applicant had included as part of the bases for his non-refoulement claim.

7.  On 17 September 2013 the Applicant was again arrested by police for undertaking unauthorized employment, and for which he was subsequently convicted and sentenced to another term of imprisonment for 12 months.

8.  By a Notice of Decision dated 30 April 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including 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”).

9.  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 those local DMK supporters and/or Mahesh 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 any of them to seriously harm or kill him given that he was just an ordinary AIADMK supporter without any official post in the party, nor is it accepted that there will still be any adverse interest in him from anyone after all these years since he left the country, that in any event in the absence of 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 1.2 billion people spread across a vast territory of more than 2.9 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 Delhi or Mumbai where it would be difficult if not impossible for anyone to locate him.

10.  On 9 May 2018 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 30 September 2021 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 1 June 2022 his appeal was dismissed by the Board which also confirmed the Director’s decision.

11.  In its decision[1] the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from any DMK supporter or Mahesh that caused him to leave his country to come to Hong Kong to seek protection, that even if his account of events prior to his departure of India were true that there was no reliable evidence of any real intention of either of them to seriously harm or kill him, and that in any event in the absence of any official involvement that state or police protection would be available to the Applicant upon his return to India as well as reasonable internal relocation alternatives for him to move safely to other parts of the country away from his home district without any risk of being located by anyone that his claim for non-refoulement protection failed on all applicable grounds.    

12.  On 10 June 2022 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 in his supporting affirmation of the same date in which he just cited various applicable law and principles but without providing any details or particulars or elaboration as to what relevancy were any of them to his intended challenge of the Board’s decision, nor was he able to do so at the hearing of his application.  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.

13.  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.

14.  In the Applicant’s case, the Board rejected his claim 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.

15.  Furthermore, the fact is that it has also been established by both the Director and the Board in their respective decisions that the risks of harm in the Applicant’s claim even if real are localized ones and that it is not unreasonable or unsafe for him to relocate to other part of India, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

16.  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.

17.  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, I therefore refuse to grant leave and accordingly dismiss his 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