DILSHAD ALI v. TORTURE CLAIMS APPEAL BOARD

HCAL 1921/2023

[2025] HKCFI 1986

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1921 OF 2023

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 oral submissions by the Applicant in open court / the Applicant being absent in open court;

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

Observations for the Applicant:

1.  The Applicant is a 48-year-old national of India who last entered Hong Kong illegally on 1 June 2019 and was arrested by the police on 11 June 2019. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his wife’s family who objected to their marriage. He was subsequently being released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised as a Muslim in Village Ahmad Nagar, District Tanda, Rampur, India. After leaving school he dated his wife from the neighboring village, but as his wife was a Hindu and due to their different religions, her family were against their relationship.

3.  Notwithstanding her family’s objection, the Applicant and his wife in March 2009 secretly got married in a mosque in Rampur, but later when their marriage was discovered by her family, her father and brother came and took her home by force and also threatened to kill the Applicant, and so to save his life the Applicant in early 2010 departed India for Hong Kong, but was subsequently arrested and repatriated to India in August 2011.

4.  Upon returning to India the Applicant was still afraid to return to his home village, and so he stayed with various friends in different cities, but when he later heard that his wife’s family were still looking for him everywhere, he felt it was not safe to remain in India, and so on 1 January 2019 he again departed India for China, and from there he later sneaked into Hong Kong, and upon his subsequent arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 22 October 2019 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  By a Notice of Decision dated 30 December 2019 the Director of Immigration (“The Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of his absolute and non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) 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”).

6.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his wife’s family upon his return to India as low due to the absence of or low intensity and frequency of past ill‑treatment from them, that there was no reliable evidence of any real intention of his wife’s family to seriously harm or kill him in what was essentially a private personal dispute between them only without any official involvement that state 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 2.9 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 area away from his home district such as Bengaluru where it would be difficult if not impossible for his wife’s family to locate him.

7.  On 7 January 2020 the Applicant lodged an appeal to the Torture Claims Appeal Board (“The Board”) against the Director’s decision, and for which he attended an oral hearing on 22 September 2023 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 11 October 2023 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

8.  In its decision the Board accepted the Applicant’s claim of fear of harm from his wife’s family due to their objection to their marriage but found no reliable evidence of any real intention of his wife’s family to seriously harm or kill him over what was essentially a private and personal dispute between him and his wife’s family only without any official involvement that state or police protection will be available to the Applicant upon his return to India as well as reasonable internal relocation for him to move safely to other part of the country away from his home district without any risk of being located by anyone that his claim for non-refoulement protection failed on all applicable grounds.

9.  On 25 October 2023 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)  That he was not provided with legal representation in his appeal before the Board;

(2)  That he was not given any language assistance for explaining the Board’s decision to him so that he could learn the reasons for its rejection of his claim or appeal;

(3)  That the Adjudicator erred in the decision in failing to consider any COI as to his religious grounds due to his lower caste and instead just disposed of his claim primarily on credibility that the rejection of his claim was not properly justified;

(4)  That the Board failed to apply high standards of fairness in its determination of the Applicant’s claim.

10.  For his complaint in Ground (1) of not being provided legal representation in his appeal before the Board, the Court of Appeal has already 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 51/2007 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, Re Lopchan Subash [2018] HKCA 37, and Re Zafar Muazam [2018] HKCA 176.

11.  The Applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify and make representation in his appeal hearing before the Board and to answer questions put to him by the Adjudicator without difficulty. I do not find anything amiss arising from the lack of legal representation in his appeal process, and I do not think this ground is reasonably arguable.

12.  As for his complaint under Ground (2) of not being provided with language assistance or a translation of the Board’s decision to enable him to learn of its reasons for rejecting his claim and appeal which even if true cannot per se be accepted as any valid ground for challenging the Board’s decision, and as such this ground is also not reasonably arguable for his intended challenge.

13.  As for his remaining complaints under Grounds (3) and (4), they are just bare and vague assertions of the Applicant without any relevant or necessary details or particulars or elaborations as to how they apply to his case, given the fact that the Board did accept the credibility of his claim of fear of harm from his wife’s family over their objection of their marriage but found, correctly in my view that it was a private personal dispute without any official involvement that state protection and internal relocation alternatives will be available to negate any such risk that these grounds are simply not reasonably arguable at all for the Applicant’s intended challenge of the Board’s decision either.

14.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim where the proper occasion for an 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 risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them, and 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 properly and clearly identified by the applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see 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.

15.  The fact is that it has been established by both the Director and the Board in their decisions that the risk of harm in the Applicant’s claim 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.

16.  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.

17.  Moreover, the Applicant recently on 27 February 2025 filed an affirmation confirming that he does not want to continue with his application as his problem in his home country has been resolved that he now wants to return to India.

18.  In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation of no more problem for him to return to his home country, I accordingly dismiss his leave 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