SK AYUB v. TORTURE CLAIMS APPEAL BOARD

HCAL 315/2020

[2025] HKCFI 1992

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 315 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;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 40-year-old national of India who arrived in Hong Kong on 7 June 2014 as a visitor with permission to remain as such up to 21 June 2014 but was arrested on 16 June 2014 for undertaking unauthorized employment, and for which he was subsequently convicted and sentenced to prison for 12 months, during which he raised a non-refoulement claim for protection to the Immigration Department on the basis that if he returned to India he would be harmed or killed by his girlfriend’s family who objected to their relationship.

2.  The Applicant was born and raised as a Muslim in Kolkata, West Bengal, India. After leaving school he ran his garment business in his home district, and dated his girlfriend who was a Hindu from the same neighborhood.

3.  However, in 2013 when the Applicant proposed to marry his girlfriend to her family, they strongly objected due to their religious difference, and demanded that they put an end to their relationship, but the Applicant refused and maintained his relationship with his girlfriend.

4.  One day in mid-2013 his girlfriend’s brother together with several men armed with hockey sticks and knives came to threaten the Applicant, and proceeded to attack him savagely, causing him cuts and bruises all over his body that he was subsequently taken to the hospital for medical treatments.

5.  Upon his discharge from hospital, the Applicant became fearful for his life and fled from his home district to Taligan, but as the threats from his girlfriend’s family persisted, the Applicant on 7 June 2014 departed India for Hong Kong, and upon his subsequent arrest for undertaking unauthorized employment, he then raised his non‑refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 12 September 2018 and attended screening interview before the Immigration Department with legal representation.

6.  By a Notice of Decision dated 25 October 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”).

7.  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 his 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 girlfriend’s family to seriously harm or kill him other than to deter him from seeing his girlfriend, that in any event it was a private and personal dispute between him and his 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”) 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 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 his girlfriend’s family to locate him.

8.  On 6 November 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 11 December 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 23 January 2020 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision 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 his girlfriend’s family that caused him to leave his country to come to Hong Kong to seek protection, that the credibility of his claim was further undermined by his failure to raise it first upon arriving in Hong Kong until after his arrest for undertaking unauthorized employment, and concluded that the Applicant was not a witness of truth and that he had concocted his claim for protection that it is not accepted that he will face any real risk of harm as alleged upon his return to India that his claim for non-refoulement protection failed on all applicable grounds.

10.  On 5 March 2020 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge:

(1)  That the Board was in breach of procedural fairness in unlawfully fettering its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirements;

(2)  That the Board failed to meet the greater care and duty owed to a self‑represented claimant;

(3)  That the Adjudicator acted in a procedurally unfair manner in dealing with the Applicant’s appeal;

(4)  That the Board’s decision to refuse the Applicant’s appeal were unreasonable or irrational in the public law sense or the result of procedural errors or unfairness;

(5)  That the Board had significantly relied on the source of news not officially recognized or were simply hearsays.

11.  These are however all just bare and vague assertions of the Applicant containing a few key words or phrases but without any relevant or necessary particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or how did the Adjudicator fail to take into account of relevant COI or what source of news relied on by the Board were not officially recognized or were simply hearsays. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for his intended challenge.

12.  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.

13.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility 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.

14.  Furthermore, the fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim even if real is a localized one 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.

15.  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.

16.  Moreover, the Applicant recently on 28 January 2025 in writing requested to “cancel” his application as it is now safe for him to return to his home country.

17.  In the premises, 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 that it is safe 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