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

HCAL 2283/2024

[2025] HKCFI 718

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2283 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 11 November 2024 of the Torture Claims Appeal Board 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 5 February 2025. I shall deal with his application on the papers.

The applicant

3.The applicant is a national of India. The applicant came to Hong Kong by the strength of his Indian passport and was refused permission to land on 27 June 2024. On the same day, the applicant lodged his non-refoulement claim.

4.The applicant’s claim was based on his fear of being harmed or killed by his paternal uncle due to a land dispute.

5.According to the applicant, there were two assault incidents in August 2022 and December 2023 where the applicant’s paternal uncle and his associates assaulted the applicant due to the refusal of the applicant’s father to give up his land. The matter was reported to police, which took no action. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 13 August 2024 by the Director (the “Director’s Decision”).

The Director’s Decision

6.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”).

7.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 past ill-treatment inflicted did not attain a minimum level of severity, perceived risk of harm is not as substantial as claimed, and the problem with the paternal uncle was private in nature and not an official matter [11-14]; state protection was available and there was no indication that the Indian government would fail to protect the applicant [16-20]; and internal relocation alternatives were available and reasonable [21-23].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 18 October 2024, the Board conducted an oral hearing for his appeal, during which the applicant gave verbal evidence and adopted as evidence what he had said in his various documents and before the Director [28].

9.Having considered the evidence, the Board found that the applicant did not present himself as particularly believable or unbelievable and was internally consistent [61-64]; found that a land dispute within a family is not a reason for non-refoulement claim [115]; and that the applicant faced no genuine and substantial risk of being subjected to ill-treatment [129]. In any event, having reviewed the various Country of Origin Information [67-113], the Board found there was reasonable state protection for the applicant [113, 137] and the Board was satisfied that it would not unreasonable or unduly harsh for the applicant to internally relocate [114]. In conclusion, the Board held that 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

10.The applicant has filed Form 86 dated 27 November 2024 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, the applicant has raised the grounds to challenge the Board’s Decision, which are summarized as follows: the Director’s and Board’s Decisions were not reasonable and irrational; there was a failure to consider state acquiescence; excessive reliance on country of origin information; and procedural impropriety and unfair assessment.

DISCUSSION

12.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).

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

14.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.”

15.Those grounds under paragraph 11 are bare assertions or the applicant’s personal comments without any evidence in support. They are not valid to challenge the Board’s Decision.

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

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.

The applicant was unrepresented and did not appear.