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

HCAL 1714/2024

[2025] HKCFI 2749

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1714 of 2024

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 oral submissions by the Applicant in open court;

Leave to apply for Judicial Review be refused.

Observation for the Applicant:

Introduction

1.  This is an application by Mr Sajid (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 2 September 2024 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 9 May 2024 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

Background of the Applicant

2.  The Applicant is an Indian. He was born on 18 April 2000 in Khuwajli Kalan, India. He received 10 years of education and had 8 years of work experience as a car repair worker.

The Claim

3.  The Applicant claimed that he was a supporter and a member of the political party Indian National Congress (“INC”) since he was 18 years old but he did not hold any position with INC. The Applicant was also a member of Lok Sabha, or the lower house of parliament in India.

4.  The Applicant claimed that his neighbour (“KPG”) was a supporter of the opposing political party, Bharatiya Janata Party (“BJP”). The Applicant did not know if KPG held any post with the BJP but he supported the BJP by putting up banners in his home village and asked people to vote for the BJP. KPG asked the Applicant to support the BJP and when he refused, KPG threatened to kill him. The Applicant fled to his friend’s home in New Delhi to avoid KPG.

5.  About a week later, that is around April 2019, KPG came to his friend’s home in New Delhi with 5 or 6 people. They were armed with wooden sticks and hockey sticks and they attacked the Applicant without saying anything (“First Incident”). The attack lasted for about 10 minutes. The Applicant was taken to a hospital for treatment and he was hospitalised for two weeks due to a fractured right leg.

6.  The Applicant reported the First Incident to the police but the police did not listen to him. The Applicant suspected it was due to the fact that KPG supported the ruling party.

7.  The Applicant fled to his friend’s home in Kolkata after the First Incident, where he stayed peacefully for five years. He returned to his home village in early 2024 and encountered KPG again. KPG and 3 or 4 of his associates threatened to kill the Applicant if he did not support the BJP (“Second Incident”). The Applicant was not physically harmed in the Second Incident.

8.  After the Second Incident, the Applicant took the advice of his friend and came to Hong Kong to seek protection. He departed India from the official channel and flew to Thailand. He then made a stop at Macau before finally arriving in Hong Kong.

9.  The Applicant claimed that he would be harmed or killed by KPG and his associates if he were returned to India.

Procedural history

10.  The Applicant arrived in Hong Kong on 23 March 2024 and was refused permission to land. By a written representation of the same day, the Applicant lodged the Claim.

11.  The Director had considered the Claim on all applicable grounds under the Unified Screening Mechanism (“USM”), namely:

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

(b)  risk of violation of right to life as a non-derogable and absolute right under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“BOR” and “BOR 2”);

(c)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the BOR (“BOR 3”); and

(d)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees (“Refugees Convention”).

12.  By the DOI Decision, the Director refused the Claim. The Applicant later filed an appeal/petition to the Board (“Appeal”). By the Board’s Decision, the Board affirmed the DOI Decision. The Board rejected and dismissed the Appeal.

13.  On 30 September 2024, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the Board’s Decision. The Applicant filed his supporting affirmation on the same day (“Supporting Affirmation”). In the Form 86, the Applicant named the Board as the proposed respondent.

The DOI Decision

14.  The Director noted that the low intensity and low frequency of past ill-treatment from KPG and his associates was indicative of a small future risk of harm upon the Applicant’s return. Further, the injuries he suffered from KPG and his associates were not serious. KPG and his associates had the opportunities to seriously harm or kill the Applicant when they visited him, but they refrained from doing so. This showed that KPG and his associates did not really intend to kill or seriously harm the Applicant.

15.  On the issue of state protection, after considering the relevant country of origin information (“COI”), the Director found that the Indian government was able and willing to protect the rights of its citizens and reasonable state protection would be available to the Applicant, if necessary.

16.  The Director further found that internal relocation would be viable. If the Applicant moved to Bangalore or Hyderabad, it would be difficult for KPG and his associates to locate him. After considering his age and work experience, the Director found that it would not be unduly harsh to expect him to relocate and lead a normal life.

17.  For the reasons set out in the DOI Decision, the Director rejected the Claim.

The Board’s Decision

18.  After a careful consideration of the Applicant’s evidence, the Board found that there was insufficient evidence to support the existence of KPG and his fellows and the Incidents. (§53 of the Board’s Decision) It nonetheless went on to assess the Claim on the basis that KPG existed. It found that the threats from KPG and his associates fell short of the required level of a genuine and substantial risk necessary for seeking non-refoulement protection. It also found that the Applicant was not at risk of losing his life.

19.  The Board also found that KPG and his associates were not state actors and there was nothing to suggest that state protection would not be available to him upon his return (§69 of the Board’s Decision). The Board noted that the Applicant never complained to a higher authority about the inaction by the New Delhi police in handling his complaint.

20.  The Board also found that with the Applicant’s age and work experience, it would not be unduly harsh to expect him to relocate within India. The Board found that KPG and his associates lacked the means to exert influence outside of their local area. (§§91-92 of the Board’s Decision)

21.  For the reasons above, the Board found that the Applicant had failed to establish his case on all applicable grounds under the USM. The Board affirmed the DOI Decision and dismissed the Appeal.

Legal principles applicable to judicial review

22.  In a judicial review, the court does not step into the shoes of the decision makers.

23.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“The role of the Court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. 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: see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.”

24.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

25.  In the Form 86, the Applicant did not put forward any ground for the intended judicial review.

26.  In the Supporting Affirmation, the Applicant reiterated his claim. He complained that the Director rejected his claim without proper inquiry and careful understanding. He invited the immigration officer to tour his country to understand his dangers if he were returned there. He only exhibited the Board’s Decision without other supporting documents to the Supporting Affirmation.

27.  This is an application for judicial review of the Board’s Decision (not the DOI Decision). As the hearing of the Appeal before the Board was by way of rehearing, errors in the DOI Decision (if any) will not constitute grounds for judicial of the Board’s Decision. (§9 of the Board’s Decision)

28.  Furthermore, the Applicant provided no particulars or specifics to substantiate his aforesaid complaint. He invited the immigration officer to visit his country to understand his dangers. There is no legal requirement that the Director’s officers have to visit the risk states to investigate non-refoulement claims. In fact, it will not be practicable for the Director’s officers to visit the risk state before deciding on each non-refoulement claim. The Applicant’s aforesaid complaint is not reasonably arguable in his intended judicial review.

29.  The Applicant attended the court hearing of 23 May 2025 (“Court Hearing”) and said that he had been retained in custody most of the time and did not have sufficient time for preparing his application. He asked for more time to prepare his case saying that he wanted to stay in Hong Kong for another 1 or 2 years.

30.  The Applicant arrived in Hong Kong on 23 March 2024 and raised the Claim on the same day. He had 14 months before the Court Hearing to prepare his case. The Board’s Decision was issued on 2 September 2024. The Applicant signed the Form 86 on 13 September 2024 and affirmed the Supporting Affirmation on 12 September 2024. He had more than 8 months before the Court Hearing to prepare for his application for leave for judicial review.

31.  I note that the Applicant stated Castel Peak Bay Immigration Centre as his address in the Form 86 and the Supporting Affirmation. However, the Director had advised the court by a memorandum dated 8 January 2025 that the Applicant was no longer in custody of the Immigration Department. By a letter dated 27 March 2025, the Director advised the court that the Applicant reported his address at Pitt Street. It can be seen that the Applicant was not under custody all the time when he was in Hong Kong. I do not agree that the Applicant did not have sufficient time to prepare for his intended judicial review application. I did not agree to adjourn the Court Hearing and proceeded with this application at the Court Hearing.

32.  In the Supporting Affirmation, the Applicant maintained at para. 5(a) that he “faced all these dangerous problems and harassment and torture in my country. I am unable to find any place to stay safely in his country, so I fled abroad to save my life.”

33.  The Applicant disagreed to the Board’s assessment of his evidence, risk of harm, state protection and viability of internal relocation.

34.  As pointed out in the Nupur Mst case (supra), assessment of evidence, risk of harm, state protection and viability of internal relocation were primarily within the province of the Board (and the Director). The Court would not intervene by way of judicial review unless there were errors of law or procedural unfairness or irrationality in the decision of the Board.

35.  In disputing the Board's assessment on evidence, risk of harm, state protection and viability of internal relocation, the Applicant sought to challenge the findings of fact of the Board which is not permissible in a judicial review unless in making such findings there were errors of law or procedural unfairness or irrationality. I find none in this case.

36.  The Board found that it was unconvincing that KPG and his fellows intended to kill or harm the Applicant as they had plenty of opportunities to do so. The Board was of the view that harm by KPG and his follows was not as real and imminent as the Applicant had asserted. The Board noted that the frequency and intensity of the alleged harm had been low. The Applicant had worked and stayed in Kolkata for an extended period with nothing eventful happened to him and he was able to leave India on the strength of his Indian passport without difficulties. The Board found that the Applicant’s assertion that KPG and his men were of strong influence in India and would locate him anywhere in India could not be sustained.

37.  The Board found that ill-treatment inflicted on the Applicant by KPG and his fellows, if any, had not attained a minimum level of severity. The Board was of the view that future risk, as suggested by the Applicant, was his own speculation. There was no indication that KPG or his fellows were public official or acting in any official capacity. The Applicant’s dispute with KPG and his fellows, if any, was private dispute only. There was no evidence to show that the government in India was involved in his private dispute with KPG and his fellows. The Board found that reasonable state protection would be available to the Applicant.

38.  The Applicant did not provide any particulars or specifics as to how the Board had erred in the Board’s Decision in affirming the DOI Decision, or in what way the Board’s Decision was unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters.

39.  Having rigorously examined the Board’s Decision with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the relevant grounds for seeking non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness.

40.  In §§63-86 and 94-97 of the Board’s Decision, the Board assessed the Claim under each of the applicable grounds under the USM.

41.  The Board found that the Applicant could not bring himself within any of the grounds referred to in the Refugees Convention and there was nothing before the Board to indicate that, if refouled, the Applicant would not be afforded the requisite level of protection from the government of India. The Applicant had failed to show that he had a well-founded fear of being persecuted for a reason referred to in the Refugees Convention.

42.  The Board found that from the COI materials and all the other relevant evidence, there was nothing before it to indicate that, the Applicant would be at risk of harm contrary to BOR 2. The Applicant had not shown that there were substantial ground for believing that if refouled, there would be a real risk or substantial grounds for believing that he would be subjected to a real risk of treatment prohibited by BOR 2.

43.  The Applicant had not shown that the government in India failed to provide reasonable protection to him. The Applicant had not shown that there were substantial grounds for believing that if refouled, there would be a real risk or substantial ground for believing that he would be subjected to a real risk of treatment prohibited by BOR 3.

44.  The Applicant also failed to show that the conduct of KPG and his fellows amount to torture as defined in section 37U of the Ordinance. He also failed to show any evidence of state acquiescence or failure of due diligence.

45.  It was on such basis that the Board found that the Applicant had failed to prove his entitlement to non-refoulement protection. These were findings of fact exclusively within the province of the Board, which the court in a judicial review will not interfere save when such findings involved error of law, procedural unfairness or irrationality. In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings for the Claim. The Board’s Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The proposed judicial review is not reasonably arguable and has no realistic prospects of success.

Conclusion

46.  In the premise and having considered the Board’s Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review.

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