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

HCAL 990/2025

[2025] HKCFI 3985

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 990 of 2025

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;

1.   Extension of time to file the Form 86 be refused;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 24 April 2025 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 7 November 2024 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 8 August 2024 (the “Notice”), refusing his application for non-refoulement protection. 

Explanation for the late application

2.  The leave application was filed 5 months and 19 days after the date of the Decision sought to be reviewed.  Pursuant to section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, the leave application was lodged more than two and half months out of time.  Leave to file the leave application out of time is required.

3.  In AW and Director of Immigration and William Lam[1], the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event.  Usually, the first three factors, particularly merits, are most crucial and determinative. If the sum total of these three factors are in favour of grant of extension, the court could be more relaxed in the remaining two.  Conversely, if it is against the grant of extension, there is no need to consider the remaining two factors.

4.  Despite clear warning in the Form 86 that an applicant is required to state his grounds for application and reasons for delay, if any, the Applicant provided neither.  As the delay is not very substantial, for expediency reason the Court explored the merits of his leave application which will dispose of both the extension of time issue and the leave application.

Background

5.  The Applicant is an Indian national.  He arrived in Hong Kong on 8 February  2024 as a visitor and overstayed since 23 February 2024.  He was arrested by the police on 20 April 2024 and referred to the Immigration Department. On 28 April 2024, he raised a non-refoulement claim.  His claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk^[2]; BOR 3 Risk^[3]; Persecution Risk^[4]; and BOR 2 Risk^[5]. His application was rejected by the Director’s Notice.  His appeal against the Notice was dismissed by the Board’s Decision.  He now applies for leave to apply for judicial review of that Decision.

The Applicant’s case

6.  The following account of the Applicant’s case is mainly based on information in the non-refoulement claim form prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer.  In gist, he claims he will be harmed or killed, if returned to India, by a named member of the Aam Admi Party (the “AAP”) (“his enemy”) and his underlings (collectively, “his enemies”) for refusing to vote for the AAP.

7.  The Applicant claimed that he and his family members are supporters of the Indian National Congress Party (the “INC”).  His enemy had been an elected candidate for the INC and a member of the Legislative Assembly (“MLA”) for Phagwara in around 2013.  But he left the INC in around 2021 to join the AAP and wanted to return as an elected MLA for the AAP. However, he was unable to secure enough votes as the AAP candidate and the INC won the 2022 election.  Although at the time of the election, the Applicant was working in Dubai, his enemies blamed him and other previous INC voters for the defeat.  After the Applicant returned to his home area in March 2022, he received a telephone call from his enemy saying that his enemy was so angry with him and his other fellows that his enemies would kill him.  The Applicant was scared and fled his home area with his family to stay with his in-laws in Kala Sangay Village about 25 kilometres away.  While he was away, his mother told him that his enemies had visited her once or twice per month threatening to kill him if they were to locate him.  Eventually, after staying in Kala Sangay Village for almost two years, he came to Hong Kong.

The finding of the Board

8.  The Board accepted the Applicant’s evidence including that he might be subjectively afraid of returning to India because of the past threats of harm or death from his enemies.  However, the Applicant only received verbal threats.  He was never confronted or physically assaulted by his enemies, let alone suffered injuries attaining a minimum level of severity.  He was never troubled by them when he returned to his home area from Kala Sangay Village to visit his mother.  Since he changed his telephone number, he was not further troubled by them.  The Applicant was only a supporter of the INC and had little or no impact on party politics.  The Board considered his claim that he had been targeted to be killed just for a single vote in a past election far-fetched and speculative. 

9.  Though the Applicant said that his enemies are locally influential, the Board found there was nothing to suggest that such influence would extend beyond his home area.  He was never troubled during his almost two years’ stay in Kala Sangala Village which was only 25 kilometers away or when he returned to his home area to visit his parents.  The Board found his enemies had no interest to pursue him.  Hence, if the Applicant were to stay away from his home area, his risk of harm would be low.

10.  The Board also rejected his argument that the police was unwilling to help him because of their loyalty to his enemy as unfounded as it was based on his lack of faith in the police.  Further, on the objective fact, his enemy was no longer a member of the Legislative Assembly but an opposition member, there was no reason to believe that the police would be loyal to him as he is not a member of the ruling party.

11.  Applying the law applicable to non-refoulement protection to these facts, the Board found 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.  Hence, it dismissed the Applicant’s appeal.

Legal principles applicable to judicial review

12.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[6].

Grounds for judicial review

13.  The Applicant advanced twelve grounds of judicial review in his six-page handwritten statement annexed to his supporting affirmation.  Some of these grounds are directed at the Director, and some at the Board.  The Director’s decision in the Notice was superseded by the Board’s Decision and is not the subject matter of the leave application, see Re Moshsin Ali[7].  For the Applicant’s benefit, the Court assumed that all these grounds are directed at the Board.  Though there are elaborations of these grounds in his statement, the elaborations are vague, general and lacking in particulars.  At the hearing, attempts were made to illicit particulars from the Applicant.  He said that the grounds were written by someone based on information provided by him.  But when asked, he was unable to provide particulars of the allegations contained in those grounds.  The general thrust of his answers to the Court’s request for particulars was essentially that he disagreed with the finding of the Board, that he felt the Decision is not right, that the Board did not make sufficient inquiries into the facts of the case and that the Decision was irregular.  He asked this Court to consider his case afresh, which is a course not open to this Court in an application for judicial review.  The Court’s other observations on these grounds are as follows.

Ground (1) - the questions asked by the immigration officer at the screening interview were not mentioned by the Director in the Notice

14.  The Applicant could not provide particulars of the questions and answers in issue.  The record of the screening interview is not before the Board.  In any event, this criticism even if justified is of no relevance as the appeal was indeed a rehearing and the Board made its own decision on the basis of the evidence.  However, lest the Board might be misled by the information in the Notice and for the purpose of Ground (7), the Court called for the record of the screening interview and conducted a careful examination.  Contrary to the Applicant’s allegation, the Court found much of the information obtained during the screening interview was mentioned and discussed in the Notice.

Ground (2) - the Notice he received is similar to those notices received by other claimants

15.  The Applicant could provide no evidence to substantiate this ground.  More importantly, as the Notice has been superseded by the Board’s Decision, it is not amenable to judicial review and is not the subject matter of this leave application, this ground, even if it were true, is wholly irrelevant.

Ground (3) - the Director failed to make sufficient inquiries of the documents provided by his country and the Indian Consulate in Hong Kong

16.  The Court assumed for the benefit of the Applicant that this criticism is directed at the Board.  There is nothing to suggest that India or the Indian Consulate in Hong Kong had provided the Director or the Board with any document to support his claim.  The Applicant’s complaint is that the Director failed to give sufficient proof that he would not receive state protection from the authorities.  The Board did consider the question of availability of state protection.  It referred to a list of sixteen COI considered by the Director.  These COI are all from authoritative and credible sources, including Country Reports on Human Rights practices for 2023 – India published by the United States Department of State and Freedom in the World 2024 Country Report published by Freedom House and the official website of National Human Rights Commission, India.  It did not deal with each of those COI.  It also quoted some COI from its own research such as an article entitled Know Your Rights: What to Do If a Police Official Refuses to File Your FIR from the betterindia.com.  As against these facts, the Applicant’s complaint is just a bare assertion.  He could not identify any COI which he claimed the Board had not considered and which would have an effect on its Decision.  Finding of availability of state protection on the basis of the COI is a finding of fact solely for the Board which the Court in an application for judicial review may not interfere, save for errors of law, procedural unfairness or irrationality in the Decision.  There is no such vitiating elements in the Decision.

Ground (4) - the Decision is irrational in that the Board failed to consider the concept of state acquiescence

17.  The Applicant submitted that his life is in danger because his enemy is a very powerful politician in India, had burnt his house, beat up his friends and that two of his friends were assaulted despite they had relocated.  None of these had been advanced in his claim.  His evidence was that he was threatened personally once and a number of times through his parents; he was not confronted or assaulted and was not troubled after he changed his telephone number.  There was no evidence that his house was burnt.  Such incident was not mentioned at all in his evidence.  He tendered no evidence on which inference of state acquiescence could be drawn. The issue of state acquiescence did not arise. 

Ground (5) - the Board failed to consider if state protection exists in India

18.  The Applicant could not provide any evidence as to the Board’s failure to consider or to properly consider the issue of state protection.  All that he could submit was that he felt the Board’s finding was not right.  As is evident from paragraph 16, the Board had considered on the basis of COI that state protection is available in India.  This is a finding of fact solely for the Board.

Ground (6) - the Board placed weight on irrelevant information

19.  The Applicant said he gave information of relevant cases to the interviewing officer and to the Board, but neither the officer nor the Board raised anything about those cases.  The officer or the Board just printed something from the internet, backdated it and gave weight to it.  The Applicant could not give particulars about the information or cases he gave to the Board or the particulars of the irrelevant information which he alleged the Board placed weight on.  The Board assessed his claim on the basis of the case as he asserted.  The source of primary facts are all from the Applicant.  Base on those facts and the COI the Board found his risk of harm is low.  In any event, assessing credibility of witnesses and the weight to be placed on any piece of evidence, including COI, are finding of fact solely for the Board which the court in a judicial review may not interfere.  It is impossible to see how on the totality of the evidence this ground could be substantiated.

Ground (7) - the Board did not call for psychiatric or psychological reports of his condition

20.  On the fact of the case as presented before the Board, there is nothing to suggest that the Applicant had suffered psychiatric or psychological harm at the hands of his enemies. 

21.  In answer to the Court’s question if he was suffering from a psychiatric or psychological condition, the Applicant said he was and he had a report in India but forgot to bring it to Hong Kong.  He added he had at some point during the screening interview told the immigration officer about the report. Specifically for this purpose, the Court called for the record of screening interview.  On a thorough reading of the record, the Court could not find the slightest mention about the Applicant suffering any psychiatric or psychological condition or that he had informed the interviewing officer that he had a psychiatric report in India which is relevant.  Indeed, he had been specifically asked by the interviewing officer at Question 24 whether he had anything else that he would like the officer to take into consideration apart from the information he had provided in his NCF and in the interview.  He answered that he had mentioned everything.  The Applicant was simply making things up as the hearing proceeded and abusing the good faith and the high standard of fairness of the Court.   

Ground (8) - no basis to find he could avoid the risk of harm by internal relocation

22.  Though the Board considered the Applicant could avoid the risk of harm by internal relocation, it found at paragraph 83 of the Decision that it is not necessary to consider that issue because there is no real chance of harm that needs to be avoided.  This ground has no real application.

Ground (9) – failure to fully consider COI in assessing his risk

23.  The Applicant gave no particulars to support this ground.  He only said that the condition in Punjab then was the same as it is now.

Ground (10) - the decision in the Notice is irregular in that the interviewing officer was not the decision maker

24.  As mentioned earlier, the appeal before the Board is a rehearing and the Decision of the Board supersedes the decision in the Notice.  There is no point to challenge the regularity of the Notice.  It is difficult to see the logic in this ground.  The interviewing officer conducted the interview and collected the evidence.  Then a more senior officer considered the evidence and made the decision.  This is the same in the proceedings before the Board.  This ground is just the Applicant’s speculative thought.

Ground (11) - there was no reasonable basis for rejecting his credibility

25.  This is a direct challenge of the Board’s finding of fact which is not permissible.

Overall scrutiny

26.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, this Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board assessed the Applicant’s claim on the basis of his case as he asserted.  He could not have any grounds to complain about the Board’s finding of these primary facts.  It was on the basis of his account of events that the Board made further finding that he had not even been assaulted or suffered any ill-treatment attaining the minimum level of severity.  Then, applying the law applicable to non-refoulement protection to those facts, it found he had failed to prove his entitlement to non-refoulement protection under any of the four applicable grounds under the USM.  These are mixed finding of facts and of the law.  Insofar as they are finding of the law, the Board is absolutely correct. Insofar as they are finding of fact, they are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  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 proposed judicial review has no realistic prospect of success.

Conclusion

27.  As the proposed judicial review has no realistic prospect of success, it would be futile to grant him extension of time to file the leave application.  Accordingly, extension of time to file the leave application and the leave application are 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

[1]   CACV 63/2015 (unreported) 3 November 2015

[2] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap. 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

[3] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap. 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)

[4] Risk of persecution by reference to the non-refoulement principle under Article 23 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[5] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383

[6] [2018] HKCA 524 at [14(1)]

[7] [2018] HKCA 549