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

HCAL 3149/2019

[2025] HKCFI 2746

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 3149 OF 2019

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J U D G M E N T

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 10 October 2019 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing the appeal against the Director’s Decision as described below.

2.  The applicant asked for a hearing. He appeared before the Court on 26 May 2025

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 is a national of India. On 20 September 2015, the applicant was arrested and he claimed to have entered Hong Kong illegally on the same day from Shenzhen. In due course, the applicant lodged his non-refoulement claim.

5.  The applicant’s claim was based on his fear of being harmed or killed by the applicant’s uncle and his creditor due to a land dispute between the applicant’s family and his uncle.

6.  According to the applicant, he borrowed money from a creditor and when he could not repay the money, the creditor started making verbal threats against him. Another dispute was between his uncle and his father. They had a fight on the land and his uncle threatened his father that he would kill the applicant as the eldest son in his father’s family. The applicant also got injured in the fight and was sent to the hospital although he does not have any medical report for his injury. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 29 June 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

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

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

b.  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”);

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

d.  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”).

8.  By way of the Director’s Decision, the Director assessed the applicant’s claim and dismissed his claim. In summary, the Director found that the level of risk was assessed to be low, that the assertion of being killed by the uncle or creditor was not as imminent and substantial, and that the dispute was localized [10-13]; that state protection was available [14-15]; and that internal relocation alternatives were available and reasonable [16-19].

The Board’s Decision

9.  The applicant appealed the Director’s Decision to the Board. On 13 August 2019, the Board conducted an oral hearing for his appeal. At the hearing, the Board asked the applicant various questions in relation to his claims [23-51].

10.  Having considered the evidence, the Board found that the applicant’s evidence regarding the central aspects of his claims was unreliable and did not accept that the applicant faced a real chance of harm of any type in India in the reasonably foreseeable future [53]. In conclusion, the Board held the applicant’s claim failed under all applicable grounds. It therefore dismissed his appeal and confirmed the Director’s Decision.

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

11.  The applicant filed the Form 86 on 23 October 2019 for leave to apply for judicial review of the Board’s Decision. The applicant’s grounds can be summarised as follows: the Director and Board reached wrong decisions and the decisions were not reasonable and fair, there was a clean case of unfair attitude shown by the Director, and the Board was procedurally improper and/or unfair. No particulars or details were provided in support of the grounds.

12.  In the applicant’s affirmation in support of his application, the applicant deposed that he was not in possession of any documents but did not provide any further elaboration on his above grounds or any details or particulars to his bare assertions.

DISCUSSION

13.  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).

14.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, when being asked whether he considered that the Board was wrong in its decisions, the applicant said that the Board was not wrong. But he asked the Court to review the Board’s Decision.

15.  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.”

16.  In view of the applicant’s submissions before the Court, his grounds under paragraph 11 are inconsistent with his submissions and should not be accepted. The applicant has therefore raised no valid ground to challenge the Board’s findings.

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

DISPOSITION

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