PAUL PRINCE v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2673/2024

[2026] HKCFI 2122

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2673 of 2024

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 oral submissions by the Applicant in open court.

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 31 December 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 16 December 2024 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 4 October 2024 (the “Notice”) refusing his application for non-refoulement protection.

The Applicant’s case

2.  The Applicant is an Indian national, now aged 35. His personal background, the factual background leading to the present application, the basis of his previous claim and the arguments she advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision. These will not be repeated here. The hyperlink to the Board’s Decision is included below [1] for reference. In gist, he claims he will be harmed or killed by the president (“BS”) of the All India Trinamool Congress Party (the “TMC”) and his associates because of his support for the Bharatiya Janata Party (the “BJP”) and by a moneylender for being unable to repay a huge debt owing to the moneylender.

3.  The Applicant claimed that since around 2020 he was verbally harassed by BS and some unknown people from the TMC because of his support for the BJP during the elections. They demanded that he stop supporting the BJP and threatened him with death if he did not. In around July 2022, the TMC people filed a false case against him, which led to his arrest and detention at the police station for one night. The Applicant was undeterred and stepped up his participation in the BJP. In April/May 2024, he was beaten by TMC people with hockey sticks and threatened.

4.  On the other hand, he had borrowed 1.5 million Indian Rupees from the moneylender in around 2019 for his tea leaves business. He suffered financial loss during the Covid-19 pandemic and was unable to repay. The moneylender pressed him for payment. Since around 2023, the moneylender sent messages to the TMC people to harass him. Feeling scared, the Applicant fled to Guangzhou on 19 July 2024 and then sneaked into Hong Kong on 21 July 2024. He was arrested by the police and lodged a non-refoulement claim on 5 August 2024.

The finding of the Board

5.  The Board accepted the basic facts about the Applicant’s loan dispute with the moneylender as he asserted and that he may have been subjectively afraid of being harmed or killed by him, if refouled; but noted that he had never been assaulted by the moneylender. It also accepted the basic facts spoken to by the Applicant in relation to his problem with BS and the TMC people, that he was harassed and assaulted by the TMC people because of his affiliation with the BJP and that he was subjectively afraid of being harmed or killed by them, if refouled.

6.  However, the Board did not accept that BS or the TMC people would harm or kill him, if he were to return to India, because he did not have a high political profile in the BJP; that the political climate is different at the time of the hearing before the Board as the BJP has become the ruling political party; and there was no reason why BS or the TMC people might expend so much time and energy simply to stop the Applicant from supporting the BJP. The Board also found no evidence that the activities of the TMC people against him were officially driven by the TMC itself.

7.  As the moneylender had allowed the Applicant a long extension of time to repay before he became agitated and that the death threats were never acted upon, the Board considered the moneylender’s objective was to recover the loan and not to harm or kill the Applicant. That the Applicant had not received any reliable news about the moneylender since coming to Hong Kong suggested that his fear that he will be killed by the moneylender was speculative. The Board did not accept that the moneylender would harm or kill the Applicant if he were returned to India.

8.  Even on the Applicant’s own case, the injuries he suffered from BS and his TMC people did not attain the required level of severity and he had never been injured by the moneylender or his associates. The Board found the Applicant’s perpetrators were non-state actors and there was no evidence that any public official or person acting in an official capacity were involved in ill-treating the Applicant. It therefore found that the ill-treatment he received did not fall within the meaning of ‘torture’ under section 37U(1) of the Immigration Ordinance.

9.  On the basis of authoritative country of origin information (“COI”), the Board accepted that state protection is generally accessible to the general public. Although on the Applicant’s case, the police in his home locality would not assist him, there was nothing to suggest that he could not obtain assistance from higher authorities. The Board found that state protection available to the Applicant.

10.  Despite both sets of perpetrators were alleged to be powerful with strong political links to the TMC, there was no evidence to suggest that their influence would extend beyond the Applicant’s home locality. The Board was not persuaded that his perpetrators would follow him around the country in order to harm or kill the him. He could avoid the risk of harm by internal relocation to cities such as Mumbai or Pune.

11.  Applying the law applicable to non-refoulement protection to the Applicant’s factual case as he asserted and the Board’s further finding of fact, the Board found he had failed to prove his entitlement to protection under any of the applicable grounds under the Unified Screening Mechanism (the “USM”). Hence, it dismissed his appeal against the Director’s Notice.

The legal principles applicable to judicial review

12.  The function 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. In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[2].

Grounds for judicial review

13.  At the hearing, after the above legal principles had been explained to him, the Applicant confirmed that he had no complaint about errors of law, procedural unfairness and irrationality in the Decision. In response to the Court’s request for elaboration, he said he was surprised at the Decision because the political situation in India is unstable and there is no fair election in India. None of these allegations had been advanced as part of his case before the Board. In any event, even if these allegations were true, they had no bearing to the specific case he advanced. He also submitted that the TMC is looking for him, his moneylender attacked his family and his perpetrators could locate him anywhere throughout India. All these matters had been considered by the Board and rejected. In particular, it never was his case that the moneylender or his associates had attacked him or his family members. His claim against the moneylender was that the moneylender passed his information to the TMC people for them to harass him. In substance, he was seeking to challenge the Board’s finding of fact, which is impermissible in an application for judicial review, save for errors of law, procedural unfairness or irrationality in the Decision. The Court will revisit these issues in its overall scrutiny of the Board’s Decision.

14.  Lastly, he pleaded for more time to stay in Hong Kong to enable him to complete his medical treatment. He had a fall and suffered a hand injury in Hong Kong. He had a surgery on his right wrist which required a follow-up operation in June. His injury had nothing to do with the protection available under the USM. This Court also has no jurisdiction over the Director’s discretion in allowing him permission to stay in Hong Kong for treatment. His medical need could not be a ground of judicial review of the Board’s Decision.

15.  However, he had advanced the following grounds of application in his supporting affirmation:

(1)  the Board’s Decision is not fair or reasonable;

(2)  the Board acted unreasonably and procedurally unfairly in placing too much reliance on the COI but failed to take his personal background and experience into account;

(3)  the Director failed to take such argument into account or give enough weight to such argument before reaching the Decision, the Director’s attitude was unfair and enough to render his Decision void;

(4)  the Director failed to give proper weight to the presence of state acquiescence;

(5)  the Board acted improperly and procedurally unfairly when assessing whether to accept his explanation and unreasonably required him to respond to question which he was not in a position to respond; and

(6)  on the evidence, the Board should have allowed his appeal.

16.  Some of these grounds are directed at the Director and not at the Board. For the benefit of the Applicant, it is assumed that they are all directed at the Board. These grounds are very familiar to this Court as it has seen them many times in other applications. They appear to be standard grounds copied from other cases which may have no bearing to the Applicant’s. They are all lacking in particulars and inconsistent with the Applicant’s admission that he had no complaint about errors of law, procedural unfairness or irrationality. When asked for particulars, his reply was simply that everything had been mentioned, that the Board did not consider his problems carefully or at all or that he could not remember. In relation to Ground (2), he even denied there was any unreasonableness or procedural unfairness. There is no substance in any of the grounds advanced.

17.  In the absence of any particularized grounds of application, the Court in a judicial review could only focus on errors of law, procedural unfairness or irrationality in its overall scrutiny of the Decision sought to be reviewed.

Overall scrutiny

18.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. It studied the relevant COI. It accepted the Applicant’s factual case as he asserted. On the basis of those facts and the COI, it made some further finding of facts. Then, applying the law applicable to non-refoulement protection under the USM to all its finding fact, the Board came to the conclusion that the Applicant had failed to establish the factual basis to support his claim for protection under any of the applicable grounds under the USM. These are mixed findings of fact and of the law. Insofar as they are finding of the law, they are absolutely correct. Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law or procedural unfairness or that the Decision is irrational. The Court could detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge her burden of proving her fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.

Conclusion

19.  For the above reasons, the Applicant’s leave application is refused.

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