YOGESH v. TORTURE CLAIMS APPEAL BOARD

HCAL 906/2025

[2026] HKCFI 3922

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 906 OF 2025

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;

1.  Extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 24 December 2024 be refused; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 26-year-old national of India who arrived in Hong Kong on 12 February 2024 as a visitor with permission to remain as such up to 26 February 2024 when he did not depart and instead overstayed, and in 8 April 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 former girlfriend’s family who objected to their relationship. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Balegadde, Mudigere Town, District Chikkamagalaru, Karnataka, India. After graduating from university, he worked in various companies to make his living, and in 2022 he started dating one of his colleagues Anushka who was from a wealthy family in his home district.

3.  One day in late 2023 the Applicant was confronted by Anushka’s brother who warned him to stay away from his sister as her family disapproved of their relationship due to their different caste and that they considered him from a lower caste not suitable to date Anushka.

4.  The Applicant however ignored the warning and continued to see Anushka, and one day in December 2023 he was confronted by her father and brother who threatened him for ignoring his warning and together they punched and kicked him violently, and before they left her father warned the Applicant that next time, they would kill him if he still failed to heed their demand to stop seeing Anushka.

5.  As a result the Applicant became fearful for his safety and fled to Kadur to take shelter in a friend’s place, but later when he heard that Anushka’s father and brother were still looking for him everywhere, the Applicant felt that it was no longer safe to remain in India, and so on 12 February 2024 he departed for Hong Kong where he subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 7 August 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 22 October 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 all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his former girlfriend’s family 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 former girlfriend’s family to seriously harm or kill him other than to stop him from seeing his former girlfriend, that in any event it was a private personal dispute between him and his former girlfriend’s family 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”) shows 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 young adult with working experience to move to other areas of the country away from his home district in large cities such as Mumbai or Delhi where it would be difficult if not impossible for anyone to locate him.

8.  On 25 October 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 9 December 2024 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 24 December 2024 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision[1] the Board accepted the Applicant’s claim of threats of harm from his former girlfriend’s family but found no reliable evidence of any real intention of her family to seriously harm or kill him other than to deter him from seeing her, and that in any event it was a private and personal dispute between him and her family only without 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.

10.  On 15 April 2025 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.   

11.  By then the Applicant was also out of time with his application, as Order 53 rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made.

12.  As the last day of the three-month period for him to file his Form 86 fell on 24 March 2025, the Applicant was therefore some 3 weeks late with his application, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

13.  In the Applicant’s case, a delay of 3 weeks must be considered as substantial and inordinate, for which he did not provide any explanation or reasons in his Form or affirmation, and as the record shows that the decision was sent on the same day of 24 December 2024 to his then reported address without being returned through undelivered post, I am unable to see any good or valid reason for such serious delay by him.   

14.  As for the merits, if any, of his intended application, as noted above that the Applicant has also failed to put forward any proper ground for his intended challenge. 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 merits in his intended application either.

15.  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.

16.  In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in his claim if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other parts 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.                

17.  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.

18.  Moreover, the Applicant has recently in writing requested to withdraw his application as his issue in his home country has been resolved that he now wants to return to India as soon as possible.

19.  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 of no more issue 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