HOSSAIN ARSHAD v. TORTURE CLAIMS APPEAL BOARD

HCAL 231/2021

[2026] HKCFI 389

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 231 OF 2021

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 50-year-old national of India who last arrived in Hong Kong on 16 January 2013 as a visitor with permission to remain as such up to 17 January 2013 when he did not depart and instead overstayed, and was arrested by police on 27 January 2013.  After he was referred to the Immigration Department for investigation, he raised a torture claim 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, and after his torture claim was rejected, he then sought non-refoulement protection on the same basis. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Khidirpur, Kolkata, India. After leaving school he worked in various jobs including factory worker, security guard and tailor assistant in his home district to make his living.

3.  In late 2011 he started dating his former girlfriend Farha, but one day in October 2012 while they were in a park, her brother and friends appeared and told Farha to leave with them, and when she refused, her brother slapped her on the face, and when the Applicant tried to intervene, her brother and friends then turned on him by punching and kicking him all over his body until they were intervened by other passersby that the Applicant managed to make his escape from the scene.

4.  After the incident the Applicant was advised by his friends that Farha’s family had political connections that he should stay away for a while to avoid any further risk of attacks by them, and so in November 2012 he departed India for Hong Kong where he stayed for a short period before returning to India.

5.  Upon returning to his home the Applicant was told by his friends that Farha’s parents had subsequently discovered from Farha of her sexual relationship with the Applicant which her parents considered as having brought shame and dishonor to the family, and had sworn to take revenge against the Applicant by sending people to look for him and to kill him, and so the Applicant became fearful for his life and fled from his home to hide in a friend’s place in Khaldhari.

6.  Later when he heard that Farha’s brother and his men had come to his home looking for him, the Applicant decided that it was no longer safe to remain in India, and so in January 2013 he again departed for Hong Kong when he subsequently overstayed, and upon his arrest by the police he raised his torture claim, and after it was rejected he then sought non-refoulement protection, for which he completed a Supplementary Claim Form (“SCF”) on 12 May 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

7.  By a Notice of Decision dated 12 June 2018, the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including 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”).

8.  In his decision, the Director took into account of all the relevant circumstances of the Applicant’s claim and doubted the credibility of his claim of fear of harm from Farha’s family that caused him to leave his country to come to Hong Kong to seek non-refoulement protection, that even if his claimed risk were real that it is assessed that 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 Farha’s family to seriously harm or kill him, that in any event it was a private dispute between him and Farha’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 New Delhi where it would be difficult if not impossible for anyone to locate him.

9.  On 25 June 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 10 November 2020 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 30 December 2020, his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  In its decision[1], the Board accepted the Applicant’s claim of his relationship with his former girlfriend Farha which was not approved by her family but found no reliable evidence of any real intention of her family to seriously harm or kill him or of any risk of such harm from them given the fact that he had since ended the relationship for some 7 years, and that in any event it was a private 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 his former girlfriend’s family that his claim for non-refoulement protection failed on all applicable grounds.    

11.  On 25 February 2021, 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 in which he just repeated his claim as before but without putting forth any proper ground for his intended challenge, nor was he able to do so at the hearing of his application. 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 the Board’s decision.

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 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 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: see TK v Jenkins & Anor [2013] 1 HKC 526.                

14.  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.

15.  For all these reasons, I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss his 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