MADAMANA JOHN SIMON v. TORTURE CLAIMS APPEAL BOARD

HCAL 1212/2022

[2025] HKCFI 233

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1212 OF 2022

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;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 48-year-old national of India who last arrived in Hong Kong on 13 June 2019 as a visitor with permission to remain as such up to 27 June 2019 when he did not depart and instead overstayed, and was arrested by police more than 1 year later on 24 September 2020. 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 his creditor over his unpaid debts. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Perambra, Kerala, India. After leaving school he worked in a stationary shop, got married and raised a family with 2 children in his home district.

3.  In 2017 he started his own grocery store with the help of a loan borrowed from a local money-lender with monthly interest payments which he initially managed to make from his business income.

4.  However, due to fierce competition in his small neighbourhood that his business did not fare well, and by February 2019 the Applicant was forced to close down his grocery store, and when he started to default with his loan repayments, his creditor then sent men to threaten him, and so the Applicant fled from his home district to Potta, and in May 2019 he departed India for Malaysia and then to Hong Kong where he 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 May 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  By a Notice of Decision dated 16 June 2021 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 assessed the level of risk of harm from his creditor and followers upon his return to India as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill him other than to press him to repay his loan, that in any event it was a private monetary dispute between him and his creditor 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 1.3 billion people spread across a vast territory of more than 3.2 millions 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 his creditor to locate him.

7.  On 24 June 2021 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 20 September 2022 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 24 October 2022, his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision 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 his creditor and followers that caused him to leave his country to come to Hong Kong to seek protection, that even if his claimed risk were real that there was no reliable evidence of any real intention of his creditor to seriously harm or kill him other than to press him to repay his debts, and that in any event it was a private monetary dispute between the 2 of them only without any official involvement that state or police protection would be available to the Applicant upon his return to if resorted 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 that his claim for non-refoulement protection failed on all applicable grounds.

9.  On 7 November 2022, the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge:

(1)  That the Board’s decision to refuse the Applicant’s appeal was unreasonable or irrational in the public law sense or the result of procedural error or unfairness;

(2)  That the Board had unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirements;

(3)  That the Adjudicator acted in a procedurally unfair manner in dealing with the Applicant’s appeal

(4)  That the Board failed to meet the greater care and duty owed to a self-represented claimant;

(5)  That in dismissing the Applicant’s appeal there was no indication that the Adjudicator had interacted with the facts of the Applicant’s claim or conducted any analysis of the supporting documents or turned his mind to the grounds under consideration being the risk of violation of the Applicant’s right to life under BOR 2;

(6)  That the Board had significantly relied on source of news not officially recognized or were simply hearsays;

(7)  That the Adjudicator had relied on cases which are outdated considering the dramatic changes that with the lack of credible source of information had resulted in the Board making groundless speculations.

10.  These are however all just bare and vague assertions of the Applicant containing a few key words or phrases but without any particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what source of news relied on by the Board were officially recognized or were outdated or what groundless speculations that the Board had made in its determination of the Applicant’s claim, or what relevancy was his claim to BOR 2 risk when on the factual basis of even his own claim that it was a private monetary dispute between him and his creditor that it simply did not engage the BOR 2 ground. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for his intended challenge.

11.  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.

12.  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.

13.  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.

14.  For all these reasons I am 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.

15.  As the Court has recently been informed by the Immigration Department that the Applicant has subsequently been removed from Hong Kong, I therefore direct that a request be made to the Director to use his best endeavor to forward a copy of this decision together with the sealed order to the Applicant in India.

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