RAJAGOPAL IYAPPAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2925/2019

[2025] HKCFI 909

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2925 OF 2019

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BETWEEN

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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 27 September 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.  The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, I shall deal with his application on paper.

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 38, is a national of India. He came to Hong Kong as a visitor on 30 October 2015. He overstayed since 14 November 2015. On 16 November 2015, he surrendered to the Immigration Department and raised a non-refouelment by written submission dated 29 January 2016 on the basis that, if refouled, he will be harmed or killed by the town secretary, R-Dachinamurhi (“RDM”) because he wanted to marry his daughter, which RDM forbade.

5.  According to the applicant, he was in love with RDM’s daughter Ram Priya and they wanted to get married. RDM knew about this and sent people to separate them, took Ram Priya back home and beat up the applicant. The applicant had sustained right shoulder fracture and he became unconscious. Those people had also vandalized his home. He did not report to police, knowing that they had been bribed by RDM. He moved about, but was followed by those people. On one occasion, he met them and he ran into a bush for his escape. They had also threatened and assaulted his mother several times. He left India for Hong Kong. Ram Priya had disappeared. She had contacted him in Hong Kong by phone. But she did not disclose her whereabouts.

6.  Details of his claim are set out at paragraph 6 of the Director’s Decision.

The Director’s Decision

7.  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”).

8.  By way of the Director’s Notice of Decision dated 22 September 2019 (“the Director’s Decision”), the Director dismissed the applicant’s claim. In elaboration, the Director found that (i) his claimed fear of being harmed or killed by RDM and his brothers is not as imminent as he alleged; (ii) state protection will be available to him; and (iii) internal relocation is viable. [11]-[26]

The Board’s Decision

9.  The applicant appealed the Director’s Decision to the Board. On 11 June 2019, the Board conducted an oral hearing for his appeal.

10.  Having considered the evidence, the Board dismissed his appeal for the reasons:

“40. … I am satisfied that the Appellant’s claims as to his relationship with a girl in his village and his problems with her family because of that relationship are exaggerated and his problem with her family because of that relationship are exaggerated or completely untrue. I do not accept that he has suffered physical attacks or been threatened by her family, and I find therefore that he has established no basis for a finding that there is a real risk that he may suffer such attacks should he return to India.”

Application for leave to apply for judicial review of the Board’s Decision

11.  The applicant has filed Form 86 dated 4 October 2019 for leave to apply for judicial review of the Board’s Decision.

12.  In his affirmation in support of his application, the applicant said he was not satisfied with the Board’s Decision, which he found to be unreasonable.

DISCUSSION

13.  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).

14.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

15.  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.”

16.  The Board, for the reasons given above, found that the applicant’s evidence was not acceptable and disbelieved his story. The ground in paragraph 12 is not valid to challenge the Board’s Decision as it is only his personal opinion without any evidence in support.

17.  There is no valid ground from the applicant to challenge the Board’s Decision.

18.  There is no reason that the Court should interfere with the Board’s finding of the facts.

19.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

20.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.