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

HCAL 2036/2024

[2025] HKCFI 659

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2036 of 2024

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 the Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is an application by Mr Sanju Masih (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 17 October 2024 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 2 August 2024 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

Background of the Applicant

2.  The Applicant is an Indian. He was born on 5 January 2003 in Punjab, India. He received 12 years of education and had 2 years of work experience as a co-owner of an iron business (“Business”).

The Claim

3.  The Applicant claimed that he was a supporter of the Indian National Congress (“Congress Party”), a political party in India. He started the Business with his paternal uncle (“Uncle”) in 2022. Uncle was a long-term supporter and a district president of the Bharatiya Janata Party (“BJP”), another political party in India.

4.  The Applicant had a verbal argument with Uncle in 2023 due to the sharing of profit in the Business. In June 2024, the Applicant and his brother celebrated the success by the Congress Party in winning the constituency of his home area. While the Applicant was celebrating outside his home, Uncle came to his home with around 10 BJP supporters. Some of the BJP supporters were armed with knives and hockey sticks and Uncle was carrying a gun (§6.24 of DOI Decision). They started beating the Applicant with hockey sticks, but he managed to escape with the help of his neighbours (“Attack Incident”). The Applicant sought medical assistance from a hospital and it took him about 2 weeks to recover.

5.  About a few days later, Uncle arrived at the Applicant’s home with about a dozen BJP supporters. Uncle claimed that he was not happy with the success of the Congress Party and blamed it on the Applicant’s support for the Congress Party. They threatened to kill the Applicant but did not cause him any harm. They came to his home two more times in the following days and repeated the same threat.

6.  The Applicant decided to flee India to avoid Uncle. Upon the suggestion by his friends, he decided to come to Hong Kong to seek non-refoulement protection.

7.  The Applicant claimed that he would be harmed or killed by Uncle and supporters of the BJP if he were returned to India.

Procedural history

8.  The Applicant arrived in Hong Kong on 15 June 2024 by flight. After he was refused permission to land, he raised a non-refoulement claim (i.e. the Claim) by a written representation of 15 June 2024.

9.  The Director had considered the Claim on all applicable grounds under the Unified Screening Mechanism (“USM”), namely:

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

(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” and “BOR 2”);

(c)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the BOR (“BOR 3”); 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 6 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 dated 4 November 2024 when he filed the Form 86 (“Supporting Affirmation”). In the Form 86, the Applicant named the Board as the proposed respondent and the Director as the interested party.

12.  The Applicant failed to attend the court hearing scheduled for 16 January 2015 for his application for leave for judicial review despite notice of hearing dated 24 December 2024 having been sent to him and not returned. I decided to deal with this application according to papers already placed before the court.

The DOI Decision

13.  The Director identified several issues with the Applicant’s evidence and questioned the truthfulness of the Claim (§§12-15 of the DOI Decision). The Director also found that the injuries suffered by the Applicant in the Attack Incident were not serious. Taking everything into consideration, the Director found that the risk faced by the Applicant upon his return to India was not serious enough for the purpose of claiming non-refoulement protection.

14.  The Director also found that the dispute between the Applicant and Uncle were not politically motivated, as the Applicant’s family (who were also supporters of the Congress Party) had never been harassed by Uncle. The Director further found that the Applicant had no influence on the outcome of the local election and the BJP had no reason to target the Applicant.

15.  The Director also held that the Applicant was not a target of adverse interest to the Indian government as he could depart India by using his own passport without encountering any problem from the Indian authorities.

16.  On the issue of state protection, after considering the relevant country of origin information (“COI”), the Director found that the Indian government was able and willing to protect the rights of its citizens and reasonable state protection would be available to the Applicant, if necessary.

17.  The Director further found that internal relocation would be viable. If the Applicant moved to Mumbai or Ahmedabad, Uncle and supporters of the BJP would have great difficulties in locating him. After considering his age, education and work experience, the Director found that it would not be unduly harsh to expect him to relocate and lead a normal life.

18.  For the reasons set out in the DOI Decision, the Director rejected the Claim.

The Board’s Decision

19.  After considering the Applicant’s claims including his written evidence, the record of his interview, his notice of appeal and his oral evidence given at the hearing before the Board, the Board formed the view that the Applicant was not a witness of truth for the reasons given at §§29-36 of the Board’s Decision. The Board found that his case was both vague and unbelievable in both his oral evidence and his written case. The Board did not accept his alleged threats and assaults by Uncle and the BJP people.

20.  Nevertheless, the Board went on to consider the Claim on the basis that the Applicant’s evidence were true to the extent that the stated threats had been issued towards him. It found that even on the Applicant’s case, his past injuries were not serious and the alleged ill-treatment he faced upon his return were not serious enough to attain a minimum level of severity for the purpose of claiming non-refouluement protection under BOR 3. No severe pain or suffering within the definition of “torture” under section 37U(1) of the Ordinance had ever been inflicted upon the Applicant. The Board did not accept that there were substantial grounds for believing that the Applicant would be subjected to arbitrary deprivation of his life in violation of BOR 2 or that he had well-founded fear for the persecution risk.

21.  The Board further found that the Indian authorities were not involved in the actions perpetrated by Uncle. It also found that there was nothing to suggest that reasonable state protection would not be available to the Applicant upon his return (§42 of the Board’s Decision).

22.  The Board further found if there were such threats as alleged, the dispute and matters relating thereto were confined to the Applicant’s local area. Internal relocation to the cities suggested by the Director in the DOI Decision would be viable to the Applicant.

23.  The Board found that the Applicant had failed to establish his case on all applicable grounds under the USM. The Board affirmed the DOI Decision and dismissed the Appeal.

Legal principles applicable to judicial review

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

25.  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 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.”

26.  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

27.  In the Form 86, the Applicant annexed a statement stating the grounds for his intended judicial review.

28.  The Applicant put forward the following grounds:

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

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

(3)  the Board acted unreasonably and was procedurally unfair by placing too much reliance on COI but failing to take into account the Applicant’s personal background and experience;

(4)  the Director failed to consider or give enough weight to COI in support of the Applicant’s case;

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

(6)  the Board ought to have allowed the Appeal but instead dismissed the same. The Board’s Decision was irrational.

29.  In the Supporting Affirmation, the Applicant only exhibited a copy of the Board’s Decision without other supporting documents.

30.  The aforesaid grounds advanced by the Applicant in the Form 86 were without particulars. They were only bare assertions.

31.  In the Form 86, the Applicant raised various complaints against the decision of the Director. This is an application for leave for judicial review against the Board’s Decision, not the DOI Decision. Hearing before the Board for the appeal/petition was de novo. The Board had expressly pointed this out in §21(b) of the Board’s Decision. Errors (if any) made by the Director in the DOI Decision will not constitute ground(s) for applying for judicial review against the Board’s Decision.

32.  The Director had considered the issue of state acquiescence in §22 of the DOI Decision. The Board had also found in §36 of the Board’s Decision that: “There is nothing in the evidence that suggests that the government would help to cause any harm on [the Applicant] or was indifferent to the alleged risk of harm.”  The issues of state acquiescence and state protection were further considered by the Board in §§42 and 45 of the Board’s Decision. The Applicant provided no particulars nor supporting evidence to substantiate his complaint of the Director failing to adequately consider state acquiescence in his feared risk. In view of the above, I do not see how such complaint may validly be made against the Board. Relying on this ground to seek judicial review has no merits.

33.  As pointed out in the Nupur Mst case (supra), assessment of COI materials and state protection were primarily within the province of the Board and the Director. 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. The fact that the Applicant did not agree to the findings of the Board and/or the Director per se is no ground for challenging such findings.

34.  The Applicant did not specify which parts of his personal background or experience had been overlooked by the Board when assessing the Claim. The Board had set out the Applicant’s case, including his personal background and experience, in some details in §§22-25 of the Board’s Decision. The Board had taken into account the personal background and experience of the Applicant and carefully considered all relevant COI before reaching its decision of dismissing the Appeal. I see no merits in this proposed ground advanced by the Applicant.  

35.  The Board found that the Applicant’s assertion lacked credence. After considering the COI and all circumstances, the Board was of the view that state protection and internal relocation would be available to the Applicant in India. The Applicant’s proposed challenge to these findings of fact by the Board is not reasonably arguable.

36.  The Applicant did not specify what inappropriate questions had been put to him by the Board. The Board had to put to the Applicant questions on all matters relating to the Claim causing concerns to the Board. If the Applicant was not in a position to respond to any of the questions, the Applicant could explain to the Board why he was unable to respond. No unfairness would be caused. There were no records that the Applicant had raised such issue at the hearing before the Board. This ground is again not reasonably arguable.

37.  The Applicant did not provide any particulars or specifics as to how the Board had erred in the Board’s Decision in affirming the DOI Decision, or in what way was the Board’s Decision unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters.

38.  Having rigorously examined the Board’s Decision and the DOI Decision with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed very high standards of fairness.

39.  The Board found the Applicant’s claims not credible. Based on the Board’s aforesaid findings and taking into account all the relevant circumstances, the Board assessed the level of risk of harm on the Applicant upon his return to India to be low. It did not appear to the Board that the Applicant faced real chance of being harmed. The Board also found that state protection and internal relocation would be available to the Applicant, if necessary.

40.  It was on such basis that the Board found that the Applicant had failed to prove his entitlement to non-refoulement protection under any of the four applicable grounds under the USM. These are 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.  

Conclusion

41.  In the premise and having considered the Board’s Decision and the DOI 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