AMIT v. TORTURE CLAIMS APPEAL BOARD

HCAL 1296/2020

[2025] HKCFI 6358

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1296 OF 2020

Application for Leave to Apply for Judicial Review

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

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court / the Applicant being absent in open court;

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 28-year-old national of India who entered Hong Kong illegally on 28 January 2016 and on 1 February 2016 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 some fellow villager over their personal dispute and/or by the family in revenge for some victim murdered by his gangster brother. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Jatai, Tehsil and District Bhiwani, Haryana, India. After leaving school he worked as a professional boxer in his home district, and dated his girlfriend Kavita.

3.  In 2011 the Applicant discovered that another boxer Sandeep who trained in the same club had been flirting with his girlfriend, and when he confronted Sandeep they broke into a fierce fight until they were intervened by other club members, whereupon Sandeep swore to kill the Applicant, and so the Applicant fled to Village Smalkha to take shelter in a friend’s place.

4.  In 2015 one of his brothers who was a gangster was involved in a murder that the family of the victim had sworn to take revenge against his family, and so the Applicant also became fearful that he might become a revenge target that he decided that it was no longer safe to remain in India, and so on 12 January 2016 he departed India for China, and from there he later sneaked into Hong Kong, and on 1 February 2016 he surrendered to the Immigration Department and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 15 October 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  By a Notice of Decision dated 29 November 2018 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”).

6.  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 Sandeep or the family of his brother’s murdered victim upon his return to India as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of Sandeep to seriously harm or kill him other than angry words and empty threats or of any past attempt of the victim’s family to harm him other than the Applicant’s own speculation, that in any event these were private disputes between them only 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 1.2 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 young adult with working experience to move to other areas of the country away from his home district in large cities such as Delhi where it would be difficult if not impossible for anyone to locate him.

7.  On 14 December 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 13 March 2020 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 18 June 2020 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  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 Sandeep due to any fights between them over his girlfriend or of any revenge taken by any family of any victim of his gangster brother that caused him to leave his country to come to Hong Kong to seek protection that it concluded that he had failed to establish any well-found fear of being harmed by anyone due to any reason upon his return to India that his claim for non-refoulement protection failed on all applicable grounds.

9.  On 24 June 2020 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 to which he just attached a copy of the decision but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for 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.

10.  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.

11.  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.

12.  Furthermore, the fact is that it has also been established by the Director in his decision 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, 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.

13.  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.

14.  For all these reasons I am 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