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HCAL 2279/2024
[2025] HKCFI 829
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2279 of 2024
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BETWEEN
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Dharmjit Singh |
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 |
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Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge To:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
Introduction
1. This is the Applicant’s application by Form 86 filed on 27 November 2024 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 18 November 2024 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 30 August 2024 (the “Notice”), refusing his non-refoulement application.
Background
2. The Applicant is an Indian national. He arrived in Hong Kong on 12 July 2024, but was refused permission to land. He made a non-refoulement claim on the same day. In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. His claim was rejected by the Director’s Notice. His appeal against the Notice was dismissed by the Board’s Decision. He now applies for leave to apply for judicial review of that Decision.
The Applicant’s case
3. The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer. In gist, he claims, if returned to India, he will be harmed or killed by his girlfriend’s father and family because of they disapprove his relationship with his girlfriend.
4. The Applicant, now aged 19, was born in Moga, Punjab, India. He is single. His parents and two brothers are living in India. He had received twelve years of formal education. He started a relationship with his girlfriend in 2021. At the beginning, they kept their relationship secret. In early 2024, his girlfriend told her family about their relationship. Her family opposed because he and his girlfriend are from different castes. He learnt from his friend that his girlfriend’s father is influential and powerful in India because he has close ties with the politician in the Aam Aadmi Party (“AAP”).
5. One day in February 2024, he was approached by his girlfriend’s brother and three other people in the street. They threatened him that if he did not stay away from his girlfriend, they would keep him away from her and then they assaulted him with sticks. After the incident, he hid in Feruzpur for about 30 days. While there, he learnt from his friend that his girlfriend’s brother was looking for him, although nothing eventful happened. Since then, he had not contacted his girlfriend and his number had been blocked. He confirmed that he was no longer in a relationship with her.
6. In April 2024, he returned to his home. One day, he was approached by his girlfriend’s brother and three other people in the street. They warned him to stay away from his girlfriend and assaulted him with sticks.
7. He never sought medical treatment, as the injuries suffered in those two incidents were not serious. He did not report the incident to the police for fear of the influence of his girlfriend’s family.
8. Since leaving India on 10 May 2024, he learnt from his family that his girlfriend’s brother shot his brother with rubber bullet in June 2024. His brother was taken to hospital for treatment. His family did not report the incident to the police because of the influence of his girlfriend’s family.
9. He claimed that state protection was not available because the police in India would be reluctant to take any action against his girlfriend’s father because of his affiliation to the AAP. He does not believe internal relocation viable, as his girlfriend’s father could locate him throughout the country through the AAP’s network.
The finding of the Board
10. The Applicant testified before the Board. The Board accepted that after fleeing India, he travelled to Thailand, Mainland China and Macau. However, he never attempted to seek protection in any of those places, even though protection was apparently available. For that reason, the Board considered his failure to take advantage of all the opportunities he had to claim non-refoulement protection in those jurisdictions was behavior detrimental to his credibility.
11. The Board found that if his girlfriend’s father and brother really wanted to seriously harm or kill the Applicant in the past, there were ample opportunities for them to do so. Yet, he only suffered minor injuries. It therefore considered that his girlfriend’s brother’s objective in the assaults was to protect the reputation of his sister instead of killing him. Moreover, the Applicant is no longer in a relationship with his girlfriend, which was the source of harm. In the absence of such relationship, the source of harm no longer existed. On this premise, the Board considered the Applicant’s belief that he would be killed if returned to India was speculative. In any event, the Board found that the Applicant’s injuries were only minor, which did not attain the level of severity required under the USM to qualify for protection.
12. On evidence, the Board found that there was nothing to suggest that his girlfriend’s father had any influence that would extend beyond his home area, as the Applicant could stay safely in Ferozpur without incident. Hence, it considered the Applicant’s belief that his girlfriend’s father and brother could locate him outside his home area in relation to a long-past issue was also speculative.
13. On the basis of objective country of origin information (“COI”), the Board found adequate state protection available and internal relocation feasible to reduce or avoid the harm or risk of harm. It found the Applicant’s belief that the police would not assist him was also entirely speculative.
14. In the circumstances, the Board found that there could not possibly be any substantial grounds for finding that the Applicant faced a real risk of ill-treatment if refouled to India. Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found that the Applicant had failed to establish the factual basis to support his claims for protection under any of the four applicable grounds. Hence, it dismissed his appeal against the decision in the Notice.
Legal principles applicable to judicial review
15. 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[5].
Grounds for judicial review
16. At the hearing, after the above legal principles have been explained to the Applicant, he said he had no knowledge of the law and left it to the Court to look for errors of law on his behalf. He confirmed he had no complaint about procedural unfairness or irrationality in the Decision. However, in his Form 86, he advanced the following five grounds:
(1) the Applicant was aggrieved by the Decision;
(2) the Applicant has sufficient interest in the subject matter of this application to make the leave application;
(3) the Board was in breach of the high standard of fairness;
(4) the immigration officer wrongly assessed that internal relocation was feasible; and
(5) the immigration officer should have reached a different conclusion.
17. The Applicant said that these grounds were prepared by someone for him and he did not understand its contents. When the contents were explained to him, he said he had no knowledge of the grounds. Nevertheless, the Court went through the grounds with him one by one.
Grounds (1) - the Applicant was aggrieved by the Decision and has sufficient interest to make the leave application; Ground (2) – the Applicant has interest to make the leave application
18. The Court accepted that the Applicant subjectively felt aggrieved by Decision and that he has sufficient interest to make the leave application. That is not sufficient to entitle him to leave to apply.
Ground (3) – breach of the high standard of fairness
19. The Applicant was unable to give particulars of the breach of the high standard of fairness. On the contrary, in answer to the Court’s question, he said he did not consider he had been unfairly treated in the various proceedings.
Grounds (4) – the immigration officer failed to assess availability of internal relocation; Ground (5) – the immigration officer should have reached a different conclusion
20. These grounds are directed at the Director’s Notice and not the Board’s Decision. The Decision of the Board is reviewable by judicial process but not the decision of the Director in the Notice because there are established statutory procedures of appeal to the Board and the Applicant has invoked those procedures. The Director’s decisions in the Notice was superseded by the Board’s Decision and is no longer susceptible to judicial review: Re Moshsin Ali[6]. It is not the subject matter of this leave application. For the Applicant’s interest, the Court treats these grounds as directed at the Board’s Decision.
21. These grounds are direct challenges of the Board’s finding of fact. For reasons as explained in paragraph 15, this is not permissible in an application for judicial review. The Court will leave these grounds to be explored in its overall scrutiny of the Board’s Decision below.
Overall scrutiny
22. Having rigorously examined the Decision, the papers 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 four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board assessed the Applicant’s claim on the basis of the factual case as he asserted. It was on that basis that the Board found the Applicant’s feared ill-treatment is not well-founded. Then, applying the law to the above finding of fact, the Board came to the conclusion that the Applicant was not entitled to non-refoulement protection under any of the four applicable grounds under the USM. These are mixed finding of facts and of the law. Insofar as they are finding of the law, they are absolutely correct. Insofar as they are finding of fact, they are exclusively within the province of the Board, which the Court on a judicial review will not interfere save for error of law, procedural unfairness and irrationality. The Court could detect no error of law in the Decision or procedural unfairness. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge his burden of proving his fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.
Conclusion
23. For the above reasons, the leave application is refused.
Dated the 4th day of March 2025
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( Seline Sze )
for Registrar, High Court
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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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 04/03/2025
Dharmjit Singh
Applicant’s ref. no:
Nil |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 04/03/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 24528
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1965/24 (Formerly RBCZ 5001544/24)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)
[3] Risk of persecution by reference to the non-refoulement principle under Article 23 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol
[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383
[5] [2018] HKCA 524 at [14(1)]
[6] [2018] HKCA 549
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