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HCAL 118/2024
[2025] HKCFI 2533
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO. 118 OF 2024
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BETWEEN
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Bahadur |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative Respondent |
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and |
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Director of Immigration |
Putative Interested Party |
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| Before: |
Deputy High Court Judge K.W. Lung in Court |
| Date of Hearing: |
14 May 2025 |
| Date of Judgment: |
2 July 2025 |
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J U D G M E N T
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THE APPLICATION
1. The applicant applies for leave to apply for judicial review of the Decision dated 14 December 2023 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing the appeal against the Director’s Decision as described below.
2. The applicant asked for a hearing. He appeared before the Court on 14 May 2025.
3. Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.
The applicant
4. The applicant, aged 33, is a national of India. On 20 March 2014, he was arrested by police and admitted that he had entered Hong Kong illegally. He lodged a non-refoulement claim with the Director of Immigration. He failed to submit the Non-refoulement Claim Form to the immigration officer and therefore his claim was deemed to have been withdrawn. On 10 July 2023, he was notified that he was permitted to lodge a subsequent claim. Since arriving in Hong Kong, he had committed offences, for which he was sentenced to imprisonment.
5. The applicant’s claim is based on his allegations that, if refouled, he will be harmed of killed by the father of a girl called Manpreet, whom he fell in love in school because her father disapproved of their relationship. He also fears that he will be harmed or killed by his family brother because he had converted from Hinduism to Islam.
6. According to the applicant, Manpreet’s family were Sikhs and his family was Hindus and Manpreet’s father was wealthy and well connect with the political party of Shiromani Akali Dal. He had gone to the applicant’s house together with four or five people to beat him up by slapping. He managed to escape. Upon his friend’s advice he left India for China. When he was in Hong Kong, he had committed offences and was imprisoned. There he met a relative of his village called Mandy. He told him about his conversion from Hinduism to Islam. Mandy was repatriated to India and he told the applicant’s family about his conversion. His family and the villagers were furious about this.
7. Details of his claim are set out at paragraph 7 of the Board’s Decision.
The Director’s Decision
8. The Director considered the applicant’s claim in relation to the following risks:
(a) risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);
(b) risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);
(c) risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and
(d) risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).
9. By way of the Director’s Decision, the Director dismissed the applicant’s claim for the reason that his claim was not substantiated. The Director found that from his experience in India, the risk of him being harmed or killed if eh returns to India is low; that state protection will be available; and internal relocation is viable. See paragraphs 27-29 of the Board’s Decision.
The Board’s Decision
10. The applicant appealed the Director’s Decision to the Board. On 17 November 2023, the Board conducted an oral hearing for his appeal.
11. The Board had made quite extensive examination of the evidence given by the applicant before it. Having considered the evidence, the Board found that the facts of his case do not support his claim on the applicable risks. See paragraphs 84 (Persecution risk), 90 (Torture risk), 94 (BOR 3 risk) and 98 (BOR 2 risk).
Application for leave to apply for judicial review of the Board’s Decision
12. The applicant has filed Form 86 dated 10 January 2014 for leave to apply for judicial review of the Board’s Decision.
13. In his affirmation in support of his application, the applicant has raised, insofar as the Board’s Decision is concerned, the grounds to challenge the Board’s Decision below.
(1) He was supplied with the hearing bundle without translation; nor did he have translation service for the Board’s Decision.
(2) He did not have legal representation for his appeal.
(3) The adjudicator refused to take his personal circumstances into consideration in the Board’s Decision.
(4) The Board had placed undue weight on state protection in India.
DISCUSSION
14. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).
15. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant submitted his written submissions, in which he repeated his story of being attacked and conversion into Muslim from Hinduism and his friends hated him. Now he asked this Court to allow him to stay in Hong Kong and he is being detained in Castle Peak Bay Immigration Center.
16. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:
“13. (1) … …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.”
17. As to the grounds under paragraph 13, he is not entitled to translation or free legal representation at all stages of the proceedings[1]. Ground (2) and Ground (4) are his bare assertions without any evidence in support. They are not valid to challenge the Board’s Decision.
18. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.
DISPOSITION
19. I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.
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(K.W. Lung) |
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Deputy High Court Judge |
The applicant appeared in person.
[1] The Court of Appeal in Re: Sharma Poonam [2019] HKCA 804, held:
“16. It has been decided in Hong Kong that the high standard of fairness required by law would not entail an interpretation service being made available to an applicant all the time as she may desire: see Re Gurnishan Singh [2018] HKCA 704; Re Gurung Sagar [2019] HKCA 658.”
The Court of Appeal in Re Ahmed Syed Rafiq [2018] HKCA 178, Hon Lam & Chu JA, 26 March 2018, held:
“22. This Court has repeatedly held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, and Re Lopchan Subash [2018] HKCA 37. The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration. We do not find anything amiss arising from lack of legal representation in the process before the Board.”
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