POKKATHAYIL DEVASSY SHALBY v. TORTURE CLAIMS APPEAL BOARD

HCAL 1707/2025

[2025] HKCFI 6109

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1707 OF 2025

Application for Leave to Apply for Judicial Review

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

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court / the Applicant being absent in open court;

1.  Extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 27 December 2024 be refused; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 46-year-old national of India who arrived in Hong Kong on 16 July 2024 as a visitor with permission to remain as such up to 30 July 2024 when he did not depart and instead overstayed, and was arrested by police on 31 July 2024. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim for protection on the basis that if he returned to India he would be harmed or killed by some fellow supporter of the political party Communist Party of India (Marxist) (“CPI(M)”) over some personal dispute between them.

2.  The Applicant was born and raised in Village Marottichal, District Thrissur, State of Kerala, India. After leaving school he worked as a goldsmith and later a taxi driver to make his living, got married and raised a family with 2 children in his home district, and supported CPI(M) regularly attended their local meetings and activities without holding any official post in the party.

3.  In 2024 the Applicant heard from some fellow supporters that one of the local senior members of CPI(M) by the name of Shinto had accepted bribes from a person for his political influence in securing a bank job for that person, but when he openly confronted Shinto about the bribe during a party meeting, Shinto denied the accusation and instead made threats against the Applicant.

4.  Shortly thereafter Shinto together with several of his followers came to the Applicant’s home to demand him to come out, and when the Applicant was afraid to do so, they then shouted threats against him and threw stones at his home before they left.

5.  A few weeks later Shinto and his men again came to the Applicant’s home to shout threats against him, and as the Applicant became fearful for his life, he fled from his home to take shelter in his uncle’s place in a neighboring village, but when he later heard that Shinto had sent men to look for him everywhere, the Applicant decided that it was no longer safe to remain in India, and so on 15 July 2024 he departed for Hong Kong and subsequently overstayed, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 20 September 2024 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 18 October 2024, 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”).

7.  In his decision, the Director took into account of all the relevant circumstances of the Applicant’s claim and did not accept that there is a real and personal risk that he will be harmed or killed by Shinto and followers upon his return to India due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of Shinto to seriously harm or kill him other than angry words and empty threats, that in any event it was a private and personal dispute between just the 2 of them 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 1.4 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 or Delhi where it would be difficult if not impossible for Shinto to locate him.

8.  On 28 October 2024, the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 9 December 2024 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 27 December 2024, his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision[1], the Board found no reliable evidence of any real intention of Shinto to seriously harm or kill the Applicant other than some angry words and empty threats, and that in any event it was a private and personal dispute between him and Shinto 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 Shinto that his claim for non-refoulement protection failed on all applicable grounds.

10.  On 31 July 2025, 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 to which he just attached a copy of the decision but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application.

11.  By then the Applicant was also out of time with his application, as Order 53 rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made.

12.  As the last day of the three-month period for him to file his Form 86 fell on 27 March 2025, the Applicant was therefore more than 4 months late with his application, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

13.  In the Applicant’s case, a delay of more than 4 months must be considered as very substantial and inordinate, for which he did not provide any explanation or reasons in his Form or affirmation, and as the record shows that the decision was sent on the same day of 27 December 2024 to his then reported address without being returned through undelivered post, I am unable to see any good or valid reason for his such serious delay.

14.  As for the merits, if any, of his intended application, as noted above that the Applicant has also failed to put forward any proper ground for his intended challenge, nor did he request any oral hearing for 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 merits in his intended application of the Board’s decision either.

15.  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.

16.  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 even 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.

17.  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.

18.  For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his such serious delay, I refuse to extend time and accordingly dismiss his leave 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