ARULRAJ DAVID THYNES v. TORTURE CLAIMS APPEAL BOARD

HCAL 760/2021

[2026] HKCFI 2334

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 760 OF 2021

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 45-year-old national of India who arrived in Hong Kong on 18 March 2016 as a visitor with permission to remain as such up to 1 April 2016 when he did not depart and instead overstayed, and on 5 April 2016 he surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if he returned to India he would be harmed or killed by the husband of the woman with whom he had had an affair in his home district. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Ariyandl Puram, Ariyandiopuram, Ilayangudi, District Sivagangai, India. After leaving school he worked as a farmer in his home district, and in 2012 he started working as a driver for a local councilor in Ariyandipuram by the name of Raja usually driving him to work, and then for the rest of the day he would drive Raja’s wife to the market buying groceries and for shopping.

3.  In about 2015, the Applicant started to have an affair with Raja’s wife, but one day in February 2016 it was discovered by Raja who was furious and threatened to kill him but the Applicant managed to escape and fled to Ilayangudi to hide in his cousin’s place before moving on to Chennai.  

4.  Later in March 2016 when he heard that Raja had come to his home in Ariyandl Puram looking for him, the Applicant felt it was no longer safe to remain in India, and so on 18 March 2016 he departed for Hong Kong and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 12 October 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

5.  By a Notice of Decision dated 30 October 2018, 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”).

6.  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 the perceived risk of harm from the local councilor Raja upon his return to India is likely to materialize due to the low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of Raja to seriously harm or kill him other than just angry words and empty threats, that in any event it was a private personal dispute between him and Raja 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 Mumbai where it would be difficult if not impossible for Raja to locate him.

7.  On 7 November 2018, the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended 3 oral hearings on 30 November 2020, 21 December 2020 and 18 January 2021 with his lawyer from DLS before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board as well as with submissions made on his behalf by his lawyer.  On 16 March 2021 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision[1], the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from some local councilor Raja due to his affair with Raja’s wife that caused him to leave his country to come to Hong Kong to seek protection, that even if his account of events prior to his departure of India were true that there was no reliable evidence of any real intention of Raja to seriously harm or kill him other than just angry words and empty threats, and that in any event it was a private and personal dispute between him and Raja only without any official involvement that state or police protection would be available to the Applicant upon his return to India as well as reasonable internal relocation alternatives for him to move safely to other parts of the country away from his home district without any risk of being located by Raja that his claim for non-refoulement protection failed on all applicable grounds.    

9.  On 25 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 asserted that he is not satisfied with the decision as it is very unreasonable as he would be killed if refouled to his home country but without putting forth any proper ground for his intended challenge, nor was he able to do so at the hearing of 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.

10.  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.

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

12.  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.

13.  As I am for the given reasons 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