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

HCAL 2093/2024

[2025] HKCFI 335

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2093 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 3 October 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. However, he was absent at the hearing on 30 December 2024. I shall deal with his application on the papers.

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 28, is an Indian. He entered Hong Kong illegally on 31 March 2024 and was arrested by the police on the same day. The applicant made a non-refoulement claim on 13 May 2024. The claim was made on the basis that, if refouled, he would be harmed or even killed by his brother due to some monetary dispute.

5.According to the applicant, his brother was a supporter of Bharatiya Janata Party (“BJP”). He had a business of selling mobile spare parts and the applicant began working at his shop in 2019. In April 2022, the applicant accepted an order from a regular customer, who subsequently defaulted payment. His brother suspected that he lined his own pocket with money from the customer and blamed him for his loss. Thereafter, frequent arguments occurred between the brothers and the applicant eventually stopped working at his brother’s shop in July 2022.

6.Over the ensuing months, the relationship between the brothers continued to deteriorate, in which the applicant would occasionally be slapped by his brother during the heat of their arguments. In February 2024, the applicant became scared after his brother threatened to kill him. Eventually, upon the advice from his friend, the applicant left India for China on 14 March 2024 and then sneaked into Hong Kong from Shenzhen on 31 March 2024.

7.The applicant had not contacted his family since he left India. As his previous reports to the police were futile, he believed that the police would not intervene in private matters. Meanwhile, he considered internal relocation not viable as well because he lacked the necessary financial capability and he also feared that his brother could utilise his BJP connection to find him.

8.Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 5 July 2024 (the “Director’s Decision”).

The Director’s Decision

9.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”).

10.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 received by the applicant indicated that his brother had no real intention to seriously harm or kill him [12]-[13]; (ii) there was no evidence showing that his brother had the means to track him down anywhere within India [14]; (iii) state protection would be available [15]-[22] and (iv) internal relocation would be viable [23]-[25].

The Board’s Decision

11.The applicant appealed the Director’s Decision to the Board. On 25 September 2024, the Board conducted an oral hearing.

12.The Board accepted that the applicant was involved in a money dispute with his brother, for which he was assaulted and threatened from time to time [46]. However, the Board found no reliable evidence showing that the applicant (i) would be seriously harmed or killed by his brother upon return to India; (ii) would face risk throughout India; (iii) had suffered injuries that reached the requisite level of severity and (iv) would be denied state protection [47].

13.Based on such findings and given that the matter was a private money dispute with no evidence of state involvement, the Board rejected the applicant’s claim on Persecution risk, Torture risk, BOR 2 and BOR 3 risk. In any event, state protection and internal relocation would be available according to the country of origin information [49]-[98].

14.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

15.The applicant has filed Form 86 dated 11 November 2024 for leave to apply for judicial review of the Board’s Decision.

16.In his affirmation in support of his application, the applicant said that the Board had come to a wrong decision as the Board had not been to his country to understand his situation.

DISCUSSION

17.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).

18.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

19.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.”

20.The Board, for the reasons given above, found that the applicant’s claimed risks were unfounded. The reason under paragraph 16 is not valid to challenge the Board’s Decision because the Board was entitled to rely upon the COI to make its assessment of the relevant risks.

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

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

DISPOSITION

23.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 was unrepresented and did not appear.