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

HCAL 2108/2024

[2025] HKCFI 1146

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2108 of 2024

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 the Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observation for the Applicant:

Introduction

1.  This is an application by Mr Masih Sunil (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 31 October 2024 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 19 July 2024 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

Background of the Applicant and the Claim

2.  The Applicant is an Indian. He was born on 17 October 2001 in Punjab, India. He received 10 years of education and had 1 year of working experience as a pipelayer.

3.  The Applicant claimed that the village head and villagers from his local village in India (“Villagers”) wanted to harm or kill him because he is a Christian. He claimed that his family was the only Christian family in his local village. On a day in 2021, the village head and about two dozen Villagers went inside his home while his family was praying and threatened to harm his family unless his family stopped the prayer gatherings. No one was subjected to any form of physical injury in this incident.

4.  The Applicant’s family was attacked on a day in 2022 by the village head and about three dozen Villagers for holding a prayer gathering. The Applicant was injured and received treatment in a local clinic.

5.  He went to live with his paternal aunt in Gurdaspur District after the aforesaid attack. He later moved to live with his friend, S, in Amristar District in 2023 but the Villagers managed to locate him. On that occasion, the Villagers slapped him for refusing to change his religion.

6.  The Applicant alleged that the village head was the president of the then ruling party in India in his home sub-district and the ruling party had significant influence over the Indian police. He believed that the Indian police sided with the village head and would not help him. Thus, he did not report any of the attacks to the police.

7.  He moved to live with his uncle in Amristar District. There, he heard from S that some Villagers went to S’s house to look for him and threatened to kill him. His uncle also received threatening calls from the Villagers. He came to Hong Kong to seek protection at the suggestion of a friend of his uncle.

8.  He arrived in Hong Kong on 31 May 2024 but was refused permission to land in Hong Kong. He then lodged the Claim on the same day.

9.  The Director assessed the Claim on the following grounds under the unified screening mechanism (“USM”), namely:

(a)  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (“torture risk”);

(b)  risk of violation of right to life as a non-derogable and absolute right under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“BOR”) (“BOR 2 risk”);

(c)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of the BOR (“BOR 3 risk”); and

(d)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

10.  By the DOI Decision, the Director refused the Claim. The Applicant later filed an appeal/petition to the Board (“Appeal”). By the Board’s Decision, the Board affirmed the DOI Decision. The Board rejected and dismissed the Appeal.

11.  On 12 November 2024, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the Board’s Decision. The Applicant filed his supporting affirmation on the same day (“Supporting Affirmation”). In the Form 86, the Applicant named the Board as the proposed respondent and the Director as the interested party.

Legal principles applicable to judicial review

12.  In a judicial review, the court does not step into the shoes of the decision makers.

13.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“The role of the Court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI [i.e. country of origin information] materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board: see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.”

14.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

15.  The Applicant failed to attend the court hearing scheduled for 27 February 2025 (“Court Hearing”) despite a notice of hearing dated 5 February 2025 having been sent to him and not being returned. In fact, the Applicant had also failed to respond to another letter dated 16 January 2025 sent by the court to him previously inviting him to send submissions to the court. As such, I decided to proceed to deal with this application according to papers already placed before the court.

16.  In the Form 86, the Applicant put forward the following grounds for his intended judicial review:

(1)  the Director and the Board reached their decisions wrongly and their decisions were not reasonable or fair;

(2)  the Director failed to appreciate or give proper importance or weight to the presence of state acquiescence;

(3)  the Board placed too much reliance on country of origin information (”COI”) but failed to take the Applicant’s personal background and experience into account. The Director failed to consider or give enough weight to COI in support of the Applicant’s case;

(4)  the Board was procedurally improper and/or unfair when assessing the Applicant’s evidence and unreasonably required the Applicant to respond to questions;

(5)  the Board failed to provide the Applicant with sufficient time and opportunity to arrange relevant evidence. The Applicant was unable to present a comprehensive case.

17.  In the Supporting Affirmation, the Applicant exhibited the Board’s Decision but did not put forward any ground for his intended judicial review.

18.  The Applicant made various complaints against the Director. As this is an application for leave for judicial review of the Board’s Decision (not the DOI Decision) and the hearing of the Appeal before the Board was de novo, error (if any) made by the Director in the DOI Decision will not constitute grounds for judicial review of the Board’s Decision.

19.  The Applicant disagreed to the Board’s assessment of his evidence and the COI.

20.  As pointed out in the Nupur Mst case (supra), assessment of evidence, COI materials, risk of harm, state protection and viability of internal relocation were primarily within the province of the Board. The court would not intervene by way of judicial review unless there were errors of law or procedural unfairness or irrationality in the decision of the Board.

21.  In disputing the Board’s findings on assessment on evidence, COI, credibility and risk of harm, the Applicant sought to challenge the findings of fact of the Board which is not permissible in a judicial review unless in making such findings there were errors of law or procedural unfairness or irrationality. I find none in this case.

22.  The Applicant complained that the Board placed too much reliance on COI but failed to take his personal background and experience into account. The Applicant did not specify which parts of his personal background or experience had been overlooked by the Board. In §§1-31 of the Board’s Decision, the Board set out the personal background and experience of the Applicant. The Board had considered the COI in the context of the Applicant’s personal background and experience. I see no merits in this proposed ground for judicial review.

23.  The Applicant complained that the Board had unreasonably required the Applicant to respond to questions.

24.  At the hearing before the Board, the Board would no doubt raise questions on matters concerning the Boards in respect of the Claim. If the Applicant was unable to answer any of the questions put to him, he might inform the Board accordingly and tell the Board why he was unable to answer the same. There was no record in the Board’s Decision of any complaint from the Applicant on inappropriate questions being put to him by the Board. In the Form 86 and the Supporting Affirmation, the Applicant had not provided particulars of any inappropriate questions put to him by the Board. He failed to attend the Court Hearing to provide particulars for this complaint to the court. Without particulars, such ground is not reasonably arguable.

25.  The Applicant complained that the Board had not allowed sufficient time for him to prepare for the Claim and the Appeal.

26.  The Applicant came to Hong Kong for seeking protection. The Applicant had planned to seek protection from foreign country since October 2023 (see §§7.36-7.41 of the DOI Decision). He should have prepared for the Claim before he came to Hong Kong on 31 May 2024. The Applicant raised the Claim on 31 May 2024. He attended the screening interview with the Immigration Officer on 15 July 2024. He had more than 7 months before he came to Hong Kong and another 1.5 months before the screening interview to prepare for the Claim. He had ample time to arrange for evidence for the Claim.

27.  The DOI Decision was issued on 19 July 2024 and the hearing before the Board did not take place until 25 September 2024. The Applicant had more than 2 months to prepare for the Appeal. If the Applicant for some reasons required more time to prepare for the Appeal, he might apply to the Board. However, in the Board’s Decision, there was no record of the Applicant making such request.

28.  In the circumstances of this case, I see no merits in this proposed ground for judicial review.

29.  The grounds stated in the Form 86 were bare assertions without particulars. In the Supporting Affirmation, the Applicant had not provided particulars to substantiate his complaints raised in the Form 86. He also failed to attend the Court Hearing to provide particulars for his complaints to the court. Without particulars, these grounds are not reasonably arguable.

30.  For reasons set out in §67 of the Board’s Decision, the Board did not believe the Applicant’s claim. The Board found the Applicant’s testimony conflicting and incredible. The Board found that the Applicant’s intention to seek protection in Hong Kong was suspicious (§68 of the Board’s Decision).

31.  The Board also found that the Indian government provided reasonable state protection to religious minorities (§§110-111 and 118 of the Board’s Decision) and that internal relocation to another area in India, such as Nagaland State, would be viable (§119 of the Board’s Decision) to the Applicant.

32.  Having rigorously examined the Board’s Decision with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the relevant grounds under the USM for seeking non-refoulement protection; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness.

33.  In §§70-143 of the Board’s Decision, the Board considered the Claim under each of the applicable grounds under the USM. The Board did not accept that the alleged ill-treatment sustained by the Applicant, whether physical or mental, attained a minimum level of severity. The Board found that the Applicant faced no genuine and substantial risk of being subjected to the BOR 3 risk and there was no foreseeable, real, personal and present risk of the Applicant facing the torture risk, if he returned to India. The Board further found that the Applicant had failed to establish that he would be subjected to the persecution risk or face a personal and real risk of the BOR 2 risk, if he was refouled to India.

34.  It was on such basis that the Board found that the Applicant had failed to prove his entitlement to non-refoulement protection. These were findings of fact which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such findings involved error of law, procedural unfairness or irrationality. In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board’s Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The proposed judicial review is not reasonably arguable and has no realistic prospects of success.

Conclusion

35.  In the premise and having considered the Board’s Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review.

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