RATHOR MANISH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 109/2021

[2025] HKCFI 5327

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 109 of 2021

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 22 January 2021 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing the appeal against the Director’s Decision as described below.

2.  The applicant did not ask for a hearing.

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 is a national of India. He is an illegal immigrant, having entered Hong Kong as a visitor on 15 July 2015, but overstayed since 30 July 2015. He was arrested. He lodged a non-refoulement claim with the Director of Immigration (“the Director”) on the basis that, if refouled, he will be harmed or killed by a tenant who had a dispute with his father over a piece of land in Uttar Pradesh and he was injured by the tenant.

5.  Details of his claim are set out in the Board’s Decision. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL000109_2021_files/the_Board's_Decision.pdf.

The Director’s Decision

6.  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”).

7.  By way of Notice of Decision dated 24 December 2018 (“the Director’s Decision”), the Director dismissed the applicant’s claim because it was unsubstantiated.

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board. On 27 May 2020, the Board conducted an oral hearing for his appeal. Despite warning from the Board that it would disbelieve his evidence if he refused to answer its questions, he refused to answer any question from the Board. The Board assessed the evidence before it.

9.  Having considered the evidence, the Board made the findings below.

(1)  As the applicant was unwilling to co-operate with the Board in establishing his claim and answering, in particular, the lines of enquiries, the Board had attached no credence to his claim. The Board further took into consideration his delay in seeking protection as he only made the claim after his arrest. [14]

(2)  The Board reject his evidence on the facts in support of his claim. [17]

(3)  In the premises, the Board found that the applicant failed to establish any of the applicable risks if he were refouled to India.

10.  For the reasons above, the Board dismissed his appeal and affirmed the Director’s Decision.

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

11.  The applicant has filed Form 86 dated 1 February 2021 for leave to apply for judicial review of the Board’s Decision.

12.  In his affirmation in support of his application, the applicant has not raised any specific reason to challenge the Board’s Decision.

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 was correct to warn the applicant that if he refused to answer its questions, it might damage the credibility of his evidence. Section 37ZA of the Ordinance provides:

“(1) It is the duty of a claimant to substantiate a torture claim, and to this end, the claimant must—

(a) provide to the Director and (on an appeal) to the Appeal Board all information relevant to the claim and make prompt and full disclosure of all material facts in support of the claim, including any document supporting those facts;

(b) comply with every requirement, procedure and condition (including any time limit)—

(i) prescribed by this Part; or

(ii) required or specify any person under this Part.”

17.  The Board was also correct to take into account of his delay in seeking protection. Section 37ZD of the Ordinance provides:

“(1) In considering a torture claim, an immigration officer or the Appeal Board may take into account, as damaging the claimant’s credibility, the following behaviour of the claimant—

(a) any behaviour that the immigration officer or the Appeal Board considers is designed to, or is likely to be designed to—

(i) conceal information;

(ii) mislead; or

(iii) obstruct or delay the handling or determination of the claimant’s torture claim;

(b) a failure to take advantage of a reasonable opportunity to claim non‑refoulement protection in respect of a torture risk State while in a place outside Hong Kong to which the Convention applies (other than a torture risk State);….

(2) Without limiting subsection (1)(a), behaviour described in any of the following paragraphs is behaviour within the meaning of that subsection—

(h) a failure, without reasonable excuse, to comply with any requirement, procedure or condition (including any time limit)—

(i) prescribed by this Part; or

(ii) required or specified by any person under this Part.”

18.  The applicant has raised no valid ground to challenge the Board’s findings.

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.

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