YADAV JITLAL v. TORTURE CLAIMS APPEAL BOARD

HCAL 1840/2020

[2025] HKCFI 6236

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1840 OF 2020

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

	consideration of the documents only; or
	consideration of the documents and oral submissions by the applicant or counsel in open court;

1.  On this court’s own motion, “Torture Claims Appeal Board” be added as the putative respondent and “Director of Immigration” be added as the putative interested party.

2.  The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated 31 August 2020 and filed on 15 September 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 26 August 2020 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001840_2020_files/the_Board's_Decision.pdf

2.  The Board found that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board rejected the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 26 May 2020 and confirmed the same.

Amendments

3.  The applicant did not name any the putative respondent and putative interested party in Form 86, when the Board should be the putative respondent and the Director should be the putative interested party.

4.  Thus, this court makes an order on its own motion to add “Torture Claims Appeal Board” as the putative respondent and “Director of Immigration” as the putative interested party.

The applicant’s case

5.  It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

6.  In sum, the applicant claimed for non-refoulement protection because if refouled to India, he would be harmed or killed by his Uncle Shibdayal Yadav (“SY”), who was a prominent member of the Bharatiya Janata Party, and his son due to a personal dispute.

Disposal on paper

7.  The applicant did not request for an oral hearing of the Leave Application. This court is also satisfied that the Leave Application can be disposed of based on the written materials before this court.

Grounds for judicial review

8.  The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

9.  The applicant did not advance any ground for his intended judicial review in Form 86, nor in his supporting affirmation dated 15 September 2020. He merely stated in the affirmation that he could not go back to his country because his life was in danger.

Discussion

10.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness, or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

11.  Thus, despite the fact that the applicant did not advance any ground for the intended judicial review, this court will scrutinize the Board’s Decision as aforesaid.

12.  In assessing the appeal by the applicant, the Board held an oral hearing on 12 August 2020. The applicant was present and was given the chance to present his case to the Board in person. However, the applicant informed the Board that he did not wish to give evidence and wanted to rely on the written information in his Non-refoulement Claim Form. He did, however, answer some questions raised by the Board.

13.  As can be seen from the Board’s Decision, the Board gave very full and detailed reasoning in finding that the applicant’s reasons for seeking non-refoulement protection in Hong Kong to be unconvincing and devoid of credibility.

14.  The Board found the applicant’s claim that he had a land issue with his uncle was clearly untrue. It was his father who had a dispute over the apportionment of land with his uncle. The Board also rejected the applicant’s claim that he would be killed in a revenge attack from either his uncle SY and/or his cousin because he had broken SY’s leg in the course of the incident in April 2019. There was no evidence at all that the applicant’s uncle suffered from any injuries whatsoever.

15.  The Board also found the applicant’s failure to raise a claim for non-refoulement protection as soon as he arrived in Hong Kong, and the fact that he only lodged such a claim some 7 months later and after his arrest by the police, cast doubt on the veracity of his claim.

16.  After due consideration of all the evidence, the Board was satisfied that the whole case as put forward by the applicant regarding his fear of his uncle SY and indeed his cousin, which was the basis of his fear of return to India, was disingenuous. The Board was not persuaded even to the low standard required that the applicant suffered any threats or ill-treatment at the hands of his uncle SY and his cousin for the reasons he had described. Thus, the Board found that the applicant’s claim failed on all the applicable grounds under the USM.

17.  Despite its findings as summarised above, the Board did go on to assess the viability of internal relocation for the applicant. The Board found that relocation to Delhi was a perfectly viable option for the applicant in order to alleviate any genuine fears he might have regarding his uncle SY and his cousin.

18.  The finding of facts including the assessment of evidence and risk of harm was solely within the ambit of the Board. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

19.  Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.

20.  As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

21.  For reasons aforesaid, the Leave Application is dismissed.

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