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

HCAL 2275/2024

[2025] HKCFI 576

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2275 OF 2024

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BETWEEN

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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 30 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 27 January 2025. 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 a national of India. The applicant was refused permission to land in Hong Kong on 30 April 2024 by the Immigration Department and he lodged his non-refoulement claim on the same day. He is currently detailed at Castle Peak Bay Immigration Centre (“CICC”).

5.The applicant’s claim was based on his fear of being harmed or killed by his ex-girlfriend’s father and brother and their associates.

6.According to the applicant, he was in love with a girl of a different caste. Her father was the village head. He was furious when he learned that the applicant was together with his daughter. Her brother also disapproved their relationship. He had, together with his friends, assaulted the applicant several times with weapon such as batons and warned him to stay away from his girlfriend. He attempted to report the matters to police, which refused to make investigation, having heard that it was the village head’s business. In April 2024, he left India for Hong Kong. Details of the story are set out in paragraph 6 of the Director’s Notice of Decision dated 20 June 2024.

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 dismissed the applicant’s claim. In summary, the Director found that there was no real and personal risk that the applicant would be harmed or killed due to the low intensity and low frequency of ill-treatment and it was a private dispute [11-18]; state protection was available and no adduced information showed that the applicant would be denied by the authorities as a whole [19-28]; and internal relocation alternatives were available, not unduly harsh and reasonable [29-30].

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board. On 19 September 2024, the Board conducted an oral hearing for his appeal.

10.Having considered the evidence, the Board found that the applicant did not present himself as particularly believable or unbelievable and his assertion in relation to the inaction of higher authorities is bare allegation without concrete evidence [67]; a family dispute between families is not a reason for a refoulement claim [120]; and there was no evidence or information that the applicant was targeted by the Indian government [141]. In any event, the Board extensively reviewed the country of origin information and found that state protection was readily available [71-116, 127]; and the Board was satisfied that it would not be unduly harsh for the applicant to internally relocate [117]. 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 has filed Form 86 dated 27 November 2024 for leave to apply for judicial review of the Board’s Decision.

12.In the applicant’s affirmation in support of his application, the applicant deposed that he did not want to return to his country because his life is still in danger and exhibited both the Board’s Decision and a handwritten note which included grounds which can be summarized as follows: the Director and Board did not give the applicant sufficient time to show his evidence because he was detained at the CICC; and he will be killed if he is deported.

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.

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.Those grounds under paragraph 12 are not valid grounds. He did not raise insufficiency of time for preparation of his claim before the Director or before the Board. There is no valid ground from the applicant to challenge the Board’s Decision.

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

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

DISPOSITION

19.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.