ALAM MAHIR v. TORTURE CLAIMS APPEAL BOARD

HCAL 1539/2020

[2025] HKCFI 6226

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1539 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 45-year-old national of India who arrived in Hong Kong on 29 July 2007 as a visitor with permission to remain as such up to 12 August 2007 when he did not depart and instead overstayed, and was arrested by police some 8 months later on 16 April 2008. After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim for protection on the basis that if he returned to India he would be harmed or killed by his uncle over their land dispute in his home village and/or by the police over some false charges made by his uncle against him. He was subsequently released on recognizance pending the determination of his claim.

2.  By a Notice of Decision dated 24 December 2014 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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”).

3.  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 uncle upon his return to India as low due to the low intensity and frequency of past ill-treatment from his uncle, that there is no evidence of any real intention of his uncle to seriously harm or kill him, that in any event it was a private land dispute between the 2 of 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 adult with working experience to move to other areas of the country away from his home district in large cities such as New Delhi where it would be difficult if not impossible for his uncle to locate him, while on the factual basis of even his own case that the police having investigated those false charges made against him by his uncle had found no evidence of any wrong doing on his part that the Applicant had subsequently been released without charges that such claimed risk is not acceptable either.

4.  The Applicant’s appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision was then dismissed by the Board on 24 March 2017 upon hearing him in evidence and submissions and upon finding no merits or substance in his appeal, and that it also agreed and confirmed the Director’s decision.

5.  The Applicant’s application for leave to apply for judicial review of the Board’s decision was refused by DHCJ Woodcock (as she then was) on 25 August 2017 upon finding no substance in any of his proposed grounds, that there was no error of law or procedural unfairness in his process before the Board or in its decision, and that there was no prospect of success in his intended application (HCAL 125/2017).

6.  The Applicant’s subsequent appeal against the court’s decision was dismissed by the Court of Appeal on 29 April 2019 (CAMP 185/2018 [2019] HKCA 442, while his Notice of Motion for leave to appeal to the Court of Final Appeal was also refused on 10 June 2019 [2019] HKCA 588.

7.  Meanwhile on 21 April 2017 the Director on his own initiative invited the Applicant to submit any additional facts which he may consider relevant to his non‑refoulement claim on all applicable grounds for non-refoulement protection, including any other absolute and non-derogable rights under the HKBOR including right to life under Article 2 (“BOR 2”), and after receiving a letter from him containing essentially the same factual basis for his claim as before, the Director by a Notice of Further Decision dated 17 July 2017 also rejected the Applicant’s BOR 2 Claim upon finding that he had failed to establish a personal and real risk of his absolute and non-derogable rights under HKBOR including right to life under BOR 2 being violated upon his return to India.

8.  On 24 July 2017 the Applicant again lodged an appeal to the Board against this Further Decision of the Director, and for which he attended another oral hearing on 19 March 2020 before the Board during which he gave further evidence and answered questions raised of his BOR 2 Claim by the same Adjudicator as before for the Board, and by a Decision[1] dated 4 June 2020 the Board dismissed his appeal upon finding that he had failed to establish that there is any real risk or real chance that he would be arbitrarily killed in contravention of the BOR 2 ground if refouled to India.

9.  On 22 July 2020 the Applicant filed another Form 86 for leave to apply for judicial review of this second decision of the Board as regard his BOR 2 Claim, but no ground for seeking relief was given in his Form or his supporting affirmation of the same date in which he just asserted that the decision is not fair but without providing any details or particulars or elaboration as to how it is so. 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 this decision of the Board as regard his BOR 2 Claim which on the factual basis of even his own case that it simply did not engage the BOR 2 ground in its limited scope.

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 fact is that it has already been established by both the Director and the Board in their earlier decisions that the risk of harm in his 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, there is simply no justification to afford him with non-refoulement protection in Hong Kong under any applicable grounds: see TK v Jenkins & Anor [2013] 1 HKC 526.

12.  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 BOR 2 Claim.

13.  Moreover, the Applicant recently on 23 October 2025 in writing requested to withdraw his application as he now wants to return to India but without any explanation as regard his claimed risk in his home country.

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, and in view of his latest confirmation of his wish 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