KIRAN KUMAR v. TORTURE CLAIMS APPEAL BOARD

HCAL 713/2021

[2025] HKCFI 6393

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 713 OF 2021

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;

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 35-year-old national of India who entered Hong Kong illegally in July 2017 and was arrested by police on 6 June 2018. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim for protection on the basis that if he returned to India he would be harmed or killed by the family of his girlfriend who objected to their relationship. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Ludhiana, Punjab, India. After leaving school he worked in the factory in his home district to make his living.

3.  In 2012, he started dating his girlfriend from the same district, but later when her family found out about their relationship, they objected to it due to their different class status as he was from the working class while she was from the middle class.

4.  Despite objections from her family, the Applicant and her girlfriend one day in May 2012 decided to elope to Chandigarh to get married there, but they were stopped by his girlfriend’s family when her father and brothers and uncles beat the Applicant with wooden sticks and belts causing him cuts and bruises all over the body, and before they took his girlfriend away they threatened the Applicant that next time they would kill him if he did not leave his girlfriend alone.

5.  As a result the Applicant became fearful for his life and departed India in July 2012 for Malaysia where he worked as a restaurant waiter until 2017 when he returned to his home district in India and secretly resumed contact with his girlfriend, and after learning that she was coming to Hong Kong to work as a foreign domestic helper, he decided to also come to Hong Kong to join her, and so in June 2017 he departed India for China, and from there he later sneaked into Hong Kong to be with his girlfriend.

6.  However, later when her girlfriend’s employment was prematurely terminated, she did not return to India and instead overstayed in Hong Kong to be with the Applicant, and upon her subsequent arrest by the police and was detained by the Immigration Department, her family blamed the Applicant for her ordeal and threatened to kill him when he returned to India, and so after he himself was arrested by police in June 2018, he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 15 December 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.  By a Notice of Decision dated 11 January 2019 the Director of Immigration (“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 or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated 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”).

8.  In his decision, the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that his perceived risks of ill-treatment from his girlfriend’s family upon his return to India due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill him other than to deter him from seeing his girlfriend, that in any event it was a private and personal dispute between him and his girlfriend’s family only without any official involvement that state or police 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 3.2 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 areas of the country away from his home district in large cities such as New Delhi where it would be difficult if not impossible for his girlfriend’s family to locate him.

9.  On 22 January 2019, the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 21 October 2020 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 6 May 2021, his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  In its decision[1], the Board found material inconsistencies discrepancies and contradictions in the Applicant’s evidence that it doubted and rejected the credibility of his claim of fear of harm from his girlfriend’s family that caused him to seek protection in Hong Kong, nor did it accept that he was in any relationship with any girlfriend or that he was in fear of any harm from her family or that he would face any risk of being harmed by her family or by anyone for any reason that it concluded that his claim for non-refoulement protection failed on all applicable grounds.

11.  On 17 May 2021, the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or his supporting affirmation of the same date in which he just repeated his claim as before but without putting forth any proper grounds for his intended challenge, nor did he request any oral hearing for his application. As such, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge of the Board’s decision.

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

13.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

14.  Furthermore, the fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim even if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, a decision also agreed and confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

15.  In the premises, and 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.

16.  For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss his 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