Abhishek v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1906/2024

[2024] HKCFI 3718

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1906 OF 2024

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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 27 September 2024 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 Decision”).

2.The applicant asked for a hearing. He appeared before the Court on 4 December 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 24, is an Indian. He was refused permission to enter Hong Kong on 27 April 2024 and he made a non-refoulement claim on the same day. The claim was made on the basis that, if refouled, he would be harmed or even killed by members/supporters of Indian National Congress (“INC”) because he was a supporter of the Bharatiya Janata Party (“BJP”).

5.According to the applicant, he became a BJP supporter in around 2022. In around August 2023, when the applicant and his friends were putting up posters on the street, they were assaulted by about 10-12 INC members/supporters and were threatened to stop promoting BJP (“the assault”). Thereafter, the applicant relocated to stay at the homes of two different friends, but some strangers still managed to find out his whereabouts. Although the applicant had no direct confrontation with the persons looking for him, he believed that they were sent by INC. He therefore felt unsafe in India and left for Hong Kong in April 2024.

6.The applicant last contacted his family on the day when he arrived in Hong Kong, during which he was informed that INC members/supporters were still after him. He was of the view that state protection would not be feasible because INC was powerful and the police did not take any action when the assault was reported to them. He also considered internal relocation not viable because the network of INC was scattered all over India, so that his whereabouts could easily be tracked.

7.Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 17 June 2024 (the “Director’s Decision”).

The Director’s Decision

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 Decision, the Director dismissed the applicant’s claim on Persecution risk, Torture risk, BOR 2 and BOR 3 risk. The Director found that (i) the low frequency and intensity of past ill-treatment from the INC members/supporters indicated that they had no real intention to seriously harm or kill the applicant [12]-[14]; (ii) the applicant’s grass-root involvement in BJP would unlikely attract adverse interest from INC [15]; (iii) there was no evidence showing that the INC members/supporters had the means to track him down nationwide within India [16]; (iv) state protection would be available [18]-[22]; and (v) internal relocation would be viable [23]-[25].

The Board’s Decision

10.The applicant appealed the Director’s Decision to the Board. On 20 September 2024, the Board conducted an oral hearing.

11.The Board found the applicant dishonest given the significant inconsistencies in his evidence [13]-[50]. In any event, even if his claim was accepted, he could resort to relocation to avoid such risks [51]-[60]. Furthermore, his dispute with the INC members/supporters was private in nature with no evidence of state involvement. Based on such findings, the Board rejected the applicant’s claim on Torture risk, Persecution risk, BOR 2 and BOR 3 risk [61]-[77].

12.The applicant’s appeal was therefore dismissed and the Director’s Decision was confirmed.

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

13.The applicant has filed Form 86 dated 23 October 2024 for leave to apply for judicial review of the Board’s Decision.

14.In his affirmation in support of his application, the applicant did not raise any specific ground to challenge the Board’s Decision.

DISCUSSION

15.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).

16.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant asked the Court to review the Board’s Decision.

17.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.”

18.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 Decision.

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

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

DISPOSITION

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

The applicant appeared in person.