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

HCAL 2132/2019

[2024] HKCFI 3077

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2132 OF 2019

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JUDGMENT

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 20 June 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s 2^nd Decision”).

2.  The applicant asked for a hearing. He appeared before the Court on 2 October 2024.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.  The applicant, aged 27, is an Indian. He arrived in Hong Kong on 23 September 2015 and made a non-refoulement claim on the same day after he was refused permission to land. The claim was made on the basis that, if refouled, he would be harmed or even killed by a Rahul Sharma because he refused to convert from Christianity to Hinduism.

5.  According to the applicant, he and all his relatives were Christians. Between December 2014 and August 2015, the applicant was assaulted and threatened to convert to Hinduism three times by Rahul Sharma and his men. Although the incidents had been reported to the police on two occasions, no action was taken by them because of Rahul Sharma’s connection with the ruling party Bharatiya Janata Party (“BJP”). Eventually, upon advice from his father’s friend, the applicant departed India for Hong Kong on 22 September 2015.

6.  The applicant was of the view that he could not seek protection from the police given their inaction when the matter was reported to them previously. He also considered internal relocation not viable because the network of BJP was scattered all over India, so that he would be easily located.

7.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 25 November 2015 (“the Director’s 1^st Decision”). 

The Director’s Decisions

8.  The Director considered the applicant’s claim in relation to the following risks:

a.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

b.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”);

c.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”) and

d.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”).

9.  By way of the Director’s 1^st Decision, the Director dismissed the applicant’s claim. The Director found that (i) the low intensity and frequency of past ill-treatment from Rahul Sharma indicated that he had no real intention to seriously harm or kill the applicant [11]; (ii) state protection would be available [12]; (iii) internal relocation would be viable [13]-[17] and (iv) the applicant’s case failed to meet any of the requirements under BOR 3 risk [18]-[20], Persecution risk [21]-[24] or Torture risk [25]-[27].

10.  In the Notice of Further Decision dated 21 February 2017, the Director also rejected the applicant’s claim on BOR 2 risk (“the Director’s 2^nd Decision”) for the reason that there was no evidence to show that his right to life under BOR 2 would be violated upon his return.

The Board’s Decision

11.  The applicant appealed the Director’s 1^st Decision to the Board. On 15 February 2016, the Board conducted an oral hearing, in which the applicant refused to answer any question.

12.  The Board found there was no reliable evidence showing that the applicant was a Christian and that he had been assaulted or threatened by a Rahul Sharma [40]-[41]. Given that there was no evidence of state involvement in the matter and the claimed ill-treatment failed to reach the requisite level of severity, the Board concluded that the applicant’s case failed to meet any of the requirements under Persecution risk, BOR 3 risk or Torture risk [56]-[81], [83]-[85]. The Board therefore dismissed the applicant’s appeal and confirmed the Director’s 1^st Decision (“the Board’s 1^st Decision”).

13.  The applicant also appealed the Director’s 2^nd Decision to the Board. The Board decided that it was not necessary to hold a hearing for the appeal. Based on the findings in the Board’s 1^st Decision, the Board considered that there was no evidence indicating that his right to life would be at risk upon return to India. The applicant’s appeal was therefore dismissed and the Director’s 2^nd Decision was confirmed (“the Board’s 2^nd Decision”).

Application for leave to apply for judicial review of the Board’s Decision

14.  The applicant has filed Form 86 dated 25 July 2019 for leave to apply for judicial review of the Board’s Decision.

15.  In the affidavit in support of his application, the applicant did not raise any specific ground to challenge the Board’s 2^nd Decision.

DISCUSSION

16.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

17.  The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said the Board was wrong because it did not accept his evidence.

18.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …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.”

19.  The Board, for the reasons given above, found that the applicant’s claimed risks were unfounded. There is no valid ground from the applicant to challenge the Board’s 2^nd Decision. As the applicant refused to give evidence at the Board’s first hearing, he cannot complain that the Board did not accept his evidence. He has no valid reason to challenge the Board’s 2^nd Decision.

20.  There is no reason that the Court should interfere with the Board’s finding of the facts.

21.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s 2^nd Decision.

DISPOSITION

22.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s 2^nd Decision. Accordingly, I dismiss his application.