SAWAN BHATTI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2134/2024

[2025] HKCFI 980

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2134 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 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 Sawan Bhatti (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 11 November 2024 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 1 August 2024 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

Background of the Applicant

2.  The Applicant is an Indian.  He was born on 21 August 1999 in Amritsar, Punjab, India.  He received 12 years of education and had 6 years of work experience as a farmer.

The Claim

3.  The Applicant claimed that he would be harmed or killed by Hindus and Muslims if he were returned to India because he is a Christian.  He claimed that he was born into a Christian family and all his family members were Christians.  In his local community, Hindus and Sikhs were the majorities.

4.  On a day in 2023, the Applicant joined a peaceful protest with about a thousand Christians at the office of a deputy police commissioner against the vandalism of a church in Tarn Taran, Punjab, India (“Protest”).  After the police officers promised to look into the matter, the protestors disbanded.

5.  In December 2023, the Applicant was threatened by 4 to 5 unknown men claiming to be Hindus (“Unknown Men”).  They said they wanted the Applicant to pay the price for joining the Protest and challenging the Hindu community.  The Applicant did not file any police report about this incident because he did not believe the police would act.

6.  In March 2024, the Unknown Men attacked the Applicant when he was heading to Amritsar.   They used wooden sticks to beat him for about 2 to 3 minutes.  They said that they would torture and kill him the next time they met.  The Applicant did not file any police report because he feared it would only worsen the situation.

7.  After the attack, the Applicant hid in his home to avoid the Unknown Men and the Hindu community in general.  After discussing with his father, he decided to come to Hong Kong to seek protection.  He left India by air without problem on 7 June 2024.  He travelled to Hong Kong via Thailand and Macao.

Procedural history

8.  The Applicant arrived in Hong Kong from Macao on 19 June 2024 and was refused permission to land.  By a written representation of 20 June 2024, the Applicant lodged the Claim.

9.  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 (“torture risk”);

(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 risk”);

(c)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the BOR (“BOR 3 risk”); 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”) (“persecution risk”).

10.  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.

11.  On 14 November 2024, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the Board’s Decision.  The Applicant also filed his supporting affirmation on 14 November 2024 (“Supporting Affirmation”).  In the Form 86, the Applicant named the Board as the proposed respondent and the Director as the interested party.

The DOI Decision

12.  The Director noted that the low intensity and low frequency of past ill-treatment from the Unknown Men was indicative of a small future risk of harm upon the Applicant’s return to India.  Further, the injuries he suffered were not serious.  In the past, the Unknown Men had the opportunities to seriously harm or kill the Applicant but they refrained from doing so.  This showed that they did not really intend to kill or seriously harm the Applicant.

13.  There were no substantial grounds to believe that further action (if any) by the Applicant’s enemies would be inflicted by or at the instigation of or with the consent or active/passive acquiescence of a public official or any other person acting in an official capacity.  The Applicant could depart freely from India without any problems, which indicated that he was not a target of the Indian government nor did they had any adverse interest in him.

14.  On the issue of state protection, after considering the relevant country of origin information (“COI”), the Director found that reasonable state protection would be available to the Applicant, if necessary.

15.  The Director further found that internal relocation to Mumbai or Delhi would be viable to the Applicant.  After considering his age, education and work experience, the Director found that it would not be unduly harsh to expect him to relocate and lead a normal life.

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

The Board’s Decision

17.  The Board accepted that the Applicant’s story was internally consistent as to the private dispute with the Unknown Men who had attacked him because of the Protest but did not accept the Applicant’s evidence that the Indian police and/or the higher authorities would not take actions to assist him if he reported the case to the police and/or the higher authorities.  The Board found that there was no evidence to show that the village head and the resident from his home village would take concrete action to harm or kill him.

18.  The Board accepted that the Applicant faced a problem of religious dispute with some unknown Hindu people, being one of the reasons for the persecution risk referred to in the Refugees Convention.  After considering the relevant COI in §§63-109 of the Board’s Decision, the Board concluded that reasonable protection of the country of the Applicant’s nationality was available, and there was no ground based on well-founded fear for the Applicant refusing it.  Internal relocation was available to the Applicant.  It would not be unreasonable or unduly harsh for him to relocate to Nagaland State to reduce or negate his alleged risks of harm, if necessary.  The Applicant failed to establish his claim under the persecution risk.

19.  There was no evidence to show that death sentence would be imposed on the Applicant if he was refouled to India and he had committed no crime in India.  He could pass through the Indian Immigration checkpoint control without difficulty.  The Board found that the Applicant had failed to establish a personal and real risk of being subjected to the BOR 2 risk if he were refouled to India.

20.  After considering the nature and extent of injuries suffered by the Applicant from the Unknown Mem, the Board did not accept that the ill-treatment, whether physical or mental, attained a minimum level of severity required for claiming protection under the torture risk or the BOR 3 risk.  There was no evidence or information to show that the Applicant was targeted by or of interest to the Indian government.  There was also no evidence to show that the Unknown Men were acting under the instruction of certain government official or the government to kill or harm the Applicant.  Reasonable state protection was available to the Applicant.

21.  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

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

23.  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.”

24.  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

25.  The Applicant failed to attend the court hearing scheduled for 23 January 2025 despite a notice of hearing dated 31 December 2024 having been sent to him and not being returned.  The Applicant had also failed to respond to a letter dated 5 December 2024 previously sent by the court to him inviting him to send submissions to the court.  As such, I decided to proceed to deal with this application according to papers already placed before the court.

26.  In the Form 86, the Applicant annexed a statement (“Statement”) stating the grounds for his intended judicial review.

27.  The Applicant put forward the following grounds in the Statement:

(1)  the Director and the Board reached their decisions wrongly and their decisions were not reasonable and fair;

(2)  the Director failed to appreciate or give proper importance or weight to the presence of state acquiescence;

(3)  the Board acted unreasonably and was procedurally unfair by placing too much reliance on COI but failing to take into account the Applicant’s personal background and experience;

(4)  the Director failed to consider or give enough weight to COI in support of the Applicant’s case that the police in his country would not be able to protect him; and

(5)  the Board ought to have allowed the Appeal but instead dismissed the same.  The Board’s Decision was irrational.

28.  In the Supporting Affirmation, the Applicant only exhibited a copy of the Board’s Decision without other supporting documents. 

29.  The aforesaid grounds advanced by the Applicant in the Form 86 were without particulars.  They were only bare assertions.

30.  The Applicant complained that the Director had failed to give proper weight to the issue of state acquiescence and failed to give proper weight to COI supporting the Applicant’s case on unavailability of state protection.  (§§4-5 of the Statement)  This is an application for leave for judicial review of the Board’s Decision (not the DOI Decision).  As pointed out by the Board in §24 of the Board’s Decision, hearing of the Appeal before the Board was de novo. The Appeal was a re-consideration of the matter from the outset instead of a consideration of whether or not the DOI Decision was the correct one.  Errors (if any) made by the Director in the DOI Decision will not constitute grounds for judicial review of the Board’s Decision.

31.  The Applicant complained that the Board reached its decision wrongly and its decision was not reasonable and fair, and that the Board ought to have allowed the Appeal but instead dismissed the same and the Board’s Decision was irrational.  However, the Applicant provided no particulars nor supporting evidence to substantiate his aforesaid complaints.  Without particulars, such grounds are not reasonably arguable in a judicial review.

32.  The Board had taken into account the personal background and experience of the Applicant in §§1-22 of the Board’s Decision and carefully considered relevant COI referred to in §§63-110 of the Board’s Decision before reaching its decision of dismissing the Appeal. 

33.  As pointed out in the Nupur Mst case (supra), assessment of risk of harm and COI materials were primarily within the province of the Board.  The court would not intervene by way of judicial review unless there were errors of law or procedural unfairness or irrationality in the decision of the Board.  The fact that the Applicant did not agree to the findings of the Board on the risk of harm or COI per se is no ground for challenging its findings.  I see no merits for this proposed ground advanced by the Applicant to challenge the Board’s consideration of the COI and of the Applicant’s alleged risk of harm.  

34.  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. 

35.  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. 

36.  The Board found that the Applicant did not face a real risk of being harmed or killed if he returned to India.  Reasonable state protection would be available and internal relocation viable to the Applicant, if necessary.

37.  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.  

Conclusion

38.  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