SINGH VIKASH PRATAP v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1373/2021

[2026] HKCFI 3703

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1373 of 2021

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

1.   The Form 86 be amended to (a) name the Director of Immigration as a putative interested party (instead of putative respondent); and (b) the Board’s Decision as the only decision sought to be reviewed; and

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

Observations for the Applicant:

1.  By a Form 86 filed on 30 September 2021, the Applicant sought leave for judicial review of the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”) dated 23 September 2021 (“the Board’s Decision”), which was made after a hearing on 3 August 2021 of a petition/appeal against the decision of the Director of Immigration (“DI”) dated 17 May 2021.  A copy of the Board’s Decision can be seen by the following hyperlink[1].

2.  The Applicant also named DI as a putative respondent and his decision a subject of the challenge in the Form 86.  Authorities are clear that DI’s decision has been substituted by the Board’s Decision after the latter was made and thus the judicial review should target at the Board’s Decision only. Paragraph 1 of the above orders is thus made. 

3.  The Applicant is an Indian national.  He entered Hong Kong in April 2019 as a domestic helper; his contract was terminated in early March 2020 and thus his visa became expired shortly afterward.  He had overstayed in Hong Kong since and was arrested in January 2021.  The criminal court sentenced him to eight months’ imprisonment in March 2021 for certain charges unrelated to the present purpose.

4.  In January 2021, the same month of his arrest, he lodged a claim for non-refoulement protection.  DI rejected the same in May 2021 after a screening interview.  The Appellant subsequently appealed/petitioned against the rejection to the Board.

5.  The Applicant’s non-refoulement claim was based on an alleged risk of being ill-treated or killed by a moneylender named Mr. B over an outstanding debt.  He alleged that after borrowing 2 million Indian rupees from Mr. B, the son of a local village chief and a local president of the Bharatiya Janata Party (“BJP”), his business premises were destroyed by fire during a riot.  As he was unable to meet his repayment obligations, Mr. B and several armed associates allegedly launched a brutal assault on the Applicant and his father, inflicting him head injuries and bone fractures that required hospitalization.

6.  Following a report to the police, Mr. B sent a text message to the Applicant threatening to kill him.  This prompted the Applicant to flee from his home area to New Delhi and Mumbai respectively to evade Mr. B’s extensive BJP-backed tracking connections.  The Applicant ultimately arrived in Hong Kong on a domestic helper visa but his contract was later terminated.  He sought non-refoulement protection in Hong Kong, claiming that the corrupt Indian police would fail to protect him and internal relocation is unviable.

7.  The Board dismissed the appeal/petition on the basis of a negative credibility finding.  The Board found the Applicant’s core narrative regarding a business failure, a loan from Mr. B which has not been repaid and the subsequent violent extortion fabricated.  The Board found the Applicant’s testimony unconvincing and filled with inconsistencies, suggesting that he was inventing evidence under questioning.  For example, the Applicant could not give any sensible explanations as to what machines he had purchased for his business by using the money he borrowed from Mr. B.  Furthermore, the Board determined that the Applicant had exaggerated the country-wide reach and political power of Mr. B, who was just the son of a village head in a community of around 500 persons.

8.  The Applicant was absent from the oral hearing before this Court.  In the Form 86, the Applicant set out a few grounds on which relief is sought.  As the DI’s own decision has been substituted by the TCAB Decision, I will only focus on those challenges against the TCAB Decision.

9.  First, it was said the Board’s Decision was Wednesbury unreasonable because it failed to properly assess the Applicant’s non-refoulement claim (“the Wednesbury Ground”).  Secondly, the Applicant contended that the Board failed to give proper weight to State acquiescence, asserting that his torture occurred at the behest of the law enforcement agencies of the State and “high-ups” of political circles, and that there was a failure of reasonable State protection under the duty of due diligence (“the State Acquiescence Ground”).  Thirdly, it was argued that the decision-makers acted with procedural unfairness by placing excessive reliance on country of origin information (“COI”) at the expense of his personal experiences (“the COI Ground”).

10.  Having vigorously considered the Applicant’s grounds and the Board’s Decision, I am of the view that none of the grounds is reasonably arguable.

11.  In relation to the Wednesbury Ground, the Board has fully directed itself on the correct legal threshold, explicitly noting its duty in paragraph 29(d) of the Board’s Decision to assess the claims with a high standard of fairness and joint endeavour.  The Board then carefully analyzed the Applicant’s oral testimony and demonstrated that the account was fundamentally inconsistent and implausible in paragraph 31.  Further, in paragraph 45, the Board systematically listed the reasons for rejecting the Applicant’s evidence.  This Court finds that this ground cannot succeed simply because the Applicant disagrees with the weight given by the Board to the evidence.  The Board’s Decision was plainly within the reasonable range of options which the Board was entitled to make.

12.  For the State Acquiescence Ground, the Board thoroughly addressed the claim by pointing out that allegations of a corrupt political nexus and State acquiescence are only triggered if an underlying risk of harm exists.  The Board used its primary credibility findings to strike down every factual component of this alleged risk, explicitly finding in paragraph 39 that the Applicant had “greatly exaggerated” Mr. B’s power.  Concluding in paragraph 45 that the entire narrative concerning the loan, threats, and assault was a complete fabrication, the Board properly noted in paragraph 47 that it was entirely unnecessary to make downstream findings on the level of State protection.

13.  In relation to COI Ground, as noted in paragraph 26, the Board has considered the COI in the hearing bundle before it.  In paragraph 45, the Board has evaluated the Applicant’s oral testimony and rejected it as fabricated.  As the personal experiences claimed by the Applicant were found to be non-existent, the Board committed no error in relying on objective COI to assess the general country conditions.

14.  The Applicant also vaguely suggested that the procedure before the Board was improper and/or unfair but was unable to give any comprehensible particulars.  Such a vague suggestion must be rejected.

15.  I have reviewed the TCAB Decision vigorously.  In my judgment, the Board’s Decision was based on sound factual findings and no legal error can be detected.  None of the proposed grounds of judicial review is reasonably arguable.  It has been reiterated time and again that the primary responsibility for the factual assessment of whether any future risk of ill-treatment exists if an applicant returns to his/her home country lies with the Board.  In the absence of any errors of law, procedural unfairness or irrationality, this Court would not reopen the Board’s findings or make a determination on the case afresh.  The role of the Court in a judicial review is not to provide a further avenue of appeal (see Re Lakhwinder Singh [2018] HKCA 246).  The leave application is accordingly dismissed.

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