JAISWAL AMIT v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1361/2023

[2025] HKCFI 1422

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1361 of 2023

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.

Observation for the Applicant:

Introduction

1.  This is an application by Mr Jaiswal Amit (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 27 July 2023 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 22 March 2023 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

Background of the Applicant and the Claim

2.  The Applicant is an Indian.  He was born on 16 August 1995 in Gorakphur, Uttar Pradesh, India.  He received 15 years of education and obtained a bachelor of Arts degree from a University of his hometown.  He had 5 years of experience operating his own mobile business (“Business”).

The Claim

3.  The Applicant started the Business in 2017.  In 2019, he borrowed Indian rupees (“INR”) 2.5 million (“Loan”) from a moneylender (“Creditor”) at a monthly interest rate of 3% to expand the Business.  They did not sign any written loan agreement and the principal of the Loan was due in 5 years. According to the Applicant, the Creditor was a local gangster and he tortured or killed debtors who failed to pay him back.

4.  The Applicant believed that the Creditor also had political affiliation with the Bharatiya Janata Party (“BJP”) because he saw the Creditor hanging out with BJP leaders.

5.  The Applicant paid back about INR 75,000 every month until the end of 2021.  He also took out a second loan of INR 500,000 from HDFC Bank.  He stopped paying back the Loan since June 2022 when he shut down the Business.

6.  The Creditor and 4 associates came to the Applicant’s home in late July 2022 to collect the Loan.  They agreed to give him two months grace period for paying back the Loan and left peacefully.

7.  On 13 October 2022, the Applicant decided to come to Hong Kong to have a vacation and to avoid the Creditor.  On 19 October 2022, the Applicant’s father told him over the phone that the Creditor came to his home.  The Creditor was angry at him for not paying back the Loan and vowed to kill him if he did not pay back the Loan.  Even after the Creditor learnt from his neighbour that the Applicant had left India, the Creditor still visited his home about twice a month (§11 DOI Decision).

8.  The Applicant told the Board at the Appeal hearing that his father had been slapped when his home was visited for demanding repayment of the Loan. The Applicant’s father made a report to the police but the police told him that the Applicant should make a report in person.

9.  The Applicant claimed that he would be harmed or killed by the Creditor if he were returned to India.

Procedural history

10.  The Applicant arrived in Hong Kong on 14 October 2022 as a visitor and was permitted to stay until 28 October 2022.  He overstayed and surrendered to the Immigration Department on 28 November 2022.

11.  By a written representation of 20 December 2022, the Applicant lodged the Claim.

12.  The Director had considered the Claim on all applicable grounds under the unified screening mechanism (“USM”), namely:

(a)   risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115;

(b)   risk of violation of right to life as a non-derogable and absolute right under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“BOR”) (“BOR 2”);

(c)   risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of the BOR (”BOR 3”); and

(d)   risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees (“Refugees Convention”).

13.  By the DOI Decision, the Director refused the Claim.  The Applicant later filed an appeal/petition to the Board (“Appeal”).  By the Board’s Decision, the Board affirmed the DOI Decision.  The Board rejected and dismissed the Appeal.

14.  On 7 August 2023, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the Board’s Decision.  The Applicant filed his supporting affirmation on the same day (“Supporting Affirmation”).  In the Form 86, the Applicant named the Board as the proposed respondent and the Director as the interested party.

15.  On 11 July 2024, the Applicant filed another affirmation applying to withdraw this intended judicial review application stating that he had no problem in returning home (“Withdrawal Application”).

The DOI Decision

16.  After considering all the relevant circumstances, the Director was of the view that there were no substantial grounds for believing that the Creditor intended to harm the Applicant.  This was because the Creditor never attempted to recover the Loan with force and the Creditor did not harm the Applicant’s family in India.  The Creditor only relayed the threat to the Applicant through his family.  The Director found that the Creditor only wanted to put pressure on the Applicant to pay back the Loan with death threats, but the Creditor did not intend to carry out those threats.

17.  On the issue of state protection, the Director found that the Indian government was able and willing to protect the rights of its citizens.

18.  The Director further found that internal relocation would be viable to the Applicant.  If the Applicant moved to Ludhiana or Kolkata, it would be difficult for the Creditor to locate him.

19.  The alleged political connection between the Creditor and the BJP was based on the Applicant’s observation that the Creditor had mingled with members of the BJP and this in itself was insufficient to support his claim that the Creditor had strong political connection.  There was no evidence to suggest that the Indian government was adversely interested in the Applicant.  There was no substantial ground to believe that the Creditor had the abilities and resources to locate the Applicant nationwide in India (§12 DOI Decision). After considering his age and work experience, the Director found that it would not be unduly harsh to expect him to relocate to those areas and lead a normal life.

20.  For the reasons set out in the DOI Decision, the Director rejected the Claim.

The Board’s Decision

21.  The Board held that notwithstanding the Applicant’s claim that the Creditor had connections with the BJP, there was no indication that the Indian government or any Indian public official would involve themselves in the dispute between the Creditor and the Applicant.  Their dispute remained a private dispute over money.

22.  The Board found that reasonable state protection would be available to the Applicant if he had made a report against any illegal behaviour of the Creditor.  Even if his report was not accepted by the Indian police, there were avenues for him to complain to higher level of authority in India (§31 Board’s Decision).

23.  The Board further found that the alleged risk from the Creditor was not serious enough to attain the minimum level of severity necessary for claiming protection under any of the applicable risks.

24.  In §§26-32, 38-40, 46-48 and 56-58 of the Board’s Decision, the Board assessed the Claim under each of the applicable grounds under the USM.  The Board found that the Applicant had failed to establish his case on all applicable grounds under the USM.  The Board affirmed the DOI Decision and dismissed the Appeal.

Legal principles applicable to judicial review

25.  In a judicial review, the court does not step into the shoes of the decision makers.

26.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“ The role of the Court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. 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: see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.”

27.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

28.  In the Supporting Affirmation, the Applicant put forward the following grounds for his intended judicial review:

(1)   the Adjudicator did not consider his claim and directly dismissed his claim;

(2)   he had submitted documents in his mother language to the Adjudicator but the Adjudicator did not accept them because he could not understand;

(3)   he requested time to arrange for translation of his documents but “my officer had no time”; and

(4)   the translator/interpreter was not helpful and asked him not to take long time for interview.

29.  In the Supporting Affirmation, the Applicant only exhibited a copy of the Board’s Decision without other supporting documents.  The aforesaid grounds were mere bare assertions without particulars or supporting evidence.  Without particulars and supporting evidence, such grounds are not reasonably arguable.

30.  The Board had considered the Claim and set out reasons for its findings and rulings in the Board’s Decision.  I do not see how the Applicant may substantiate his assertion in the Supporting Affirmation that: “Adjudicator did not consider my claim.  Adjudicator directly dismissed.  He did not even take time or did not think about my life.”

31.  In the Board’s Decision, there was no mention of the Applicant requesting to submit further documents to the Board at the Appeal hearing.  The Applicant provided no particulars nor supporting evidence to substantiate his complaints.

32.  Furthermore, the Applicant had not specified in the Supporting Affirmation what further documents submitted had been rejected by the Board nor exhibited such documents to the Supporting Affirmation.  The Applicant’s such assertions were only vague and bare assertions.  I find no merits in his such complaints.

33.  The Applicant complained that the interpreter did not assist him.  In §6 of the Board’s Decision, the Board recorded that the Applicant testified at the Appeal hearing.  He did that with the assistance of the interpreter.  If the interpreter had failed to assist him at the screening interview before the Immigration Officer or at the Appeal hearing before the Board, he could raise that with the interviewing officer or the Board.  There was no record of such complaints.

34.  I see no merits in the Applicant’s complaint on the language issue.

35.  No proper ground for his intended challenge was stated in the Form 86 and/or the Supporting Affirmation.  The Applicant did not provide any particulars or specifics as to how the Board had erred in the Board’s Decision in affirming the DOI Decision, or in what way was the Board’s Decision unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters.

36.  Having rigorously examined the Board’s Decision with anxious scrutiny, I am 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 standard of proof; correctly identified the issues and observed high standards of fairness.  Lastly, the Board found that internal relocation would be viable to the Applicant (§59 of the Board’s Decision).

37.  The Board found that the Applicant had never establish that he had attained a level of “severity” of pain or suffering, whether physically or mentally.  It did not amount to the level of severity required by the definition of “torture” for claiming non‑refoulement protection. 

38.  For reasons stated in §§38-39 of the Board’s Decision, the Board considered that the attitude and position of the Creditor was soft and he was not too harsh in demanding repayment.  The Board found that the Creditor had no intention to really seriously harm or kill the Applicant and reasonable state protection was available to the Applicant.  The Board found that the Applicant had not suffered from ill-treatment, physically or mentally.  The Board did not accept that the Applicant would face a genuine and substantial risk of being subjected to ill-treatment under BOR 3.  The Board found that the Applicant had failed to establish in evidence a personal or real risk of his right of life under BOR 2 being violated upon his return to India.

39.  For reasons stated in §57 of the Board’s Decision, the Board found that the Applicant had failed to show that he had a well-founded fear of being persecuted for any of the reasons referred to in the Refugees Convention and his claim for protection from refoulement under the persecution risk failed.

40.  It was on such basis that the Board found that the Applicant had failed to prove his entitlement to non-refoulement protection under any of the applicable grounds under the USM.  These are findings of fact which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such findings involved error of law, procedural unfairness or irrationality.  In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Board’s Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  The proposed judicial review is not reasonably arguable.

The Withdrawal Application

41.  The Applicant subsequently filed the Withdrawal Application on 11 July 2024 stating that he had no problem to return home and he wanted to return to his country as soon as possible.

42.  There is no evidence to show that the Applicant made the Withdrawal Application other than out of his own volition.

43.  Apart from the Withdrawal Application, there is nothing outstanding in this action.

44.  The Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 at §19(1) that:

“ The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

Conclusion

45.  In the premise and having considered the Board’s Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review.

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