Jagdish Masih Alias Jagdeesh Masih v. Torture Claims Appeal Board

HCAL 263/2022

[2025] HKCFI 1213

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 263 OF 2022

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 36-year-old national of India who had previously in 2012 arrived in Hong Kong but when he was refused entry by the Immigration Department, he raised a torture claim which he subsequently withdrew before determination, and was repatriated to India in 2016, but some 3 years later in or around March 2019 he sneaked back into Hong Kong, and was arrested by police on 6 May 2019. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim for protection on the basis that if he returned to India he would be harmed or killed by certain local supporters of the political party Shiromani Akali Dal (“SAD”) as he supported their rival Indian National Congress Party (“INC”) and/or by members of the Hindu nationalist organization Rashtriya Swayamsevak Sangh (“RSS”) for refusing to convert his religion from Christianity to Hinduism. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised as a Christian in Village Khushipur, Dalelpur, Kalanaur, Gurdaspur, Punjab, India. After leaving school he worked as a farmer in his home village, during which he often faced hostilities from the Hindu villagers and RSS members for being a Christian minority.

3.Eventually he got married and raised a family with 2 children in his home village, and started to support INC regularly attended their local meetings and activities.

4.On one occasion in June 2012 while together with his fellow INC supporters putting up posters for their party in his home village, they were confronted and then attacked by a group of SAD supporters that the Applicant was injured in his right leg that later required medical treatments in a hospital.

5.After another attack by the same group of SAD supporters in August 2012 that he was punched and kicked, the Applicant became fearful for his life and departed India for Hong Kong on 24 December 2012, and when he was refused entry he raised a torture claim to the Immigration Department, but before it could be determined, the Applicant in 2016 withdrew his claim after he was informed by his family in India that his dispute with the local SAD supporters had been resolved, whereupon he was repatriated to India on 19 December 2016.

6.Upon returning to his home village, the Applicant resumed his life as before, but one day in July 2017 the same group of local SAD supporters came to him to invite him to join their party, and when he refused, they then beat him with wooden sticks severely that he suffered cuts and bruises all over his body.

7.After the beating the Applicant fled from his home village for New Delhi to stay in a friend’s place, but several months later the same group of SAD supporters located the Applicant and assaulted him again, whereupon the Applicant fled to Gujrat to take shelter in another friend’s place, but in February 2018 those SAD supporters again located the Applicant and beat him again, and so the Applicant again fled to Malakwal to hide in his in-laws’ place.

8.However, in early 2019 the SAD people were able to locate the Applicant in Malakwal and assaulted him again to try to force him to join their party, and thereafter the Applicant felt it was no longer safe to remain in India, and so in February 2019 he departed for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 20 August 2019 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

9.By a Notice of Decision dated 5 September 2019 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

10.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from those SAD supporters or the Hindu villagers upon his return to India as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of the former to seriously harm or kill him other than to press him to join their party or of any evidence of any real threats from the latter against him, that in any event in the absence of any official involvement in either threats that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in India with a large population of 1.4 billion people spread across a vast territory of more than 3.2 million square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from his home district in large cities such as Mumbai where it would be difficult if not impossible for anyone to locate him.

11.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 22 May 2020 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 15 March 2022 his appeal was dismissed by the Board which also confirmed the Director’s decision.

12.In its decision the Board found material inconsistencies discrepancies and implausibility in the Applicant’s evidence that he was not considered a witness of truth and that his evidence was totally lacking in credibility that even the centre pieces of his claims of fear of harm from either SAD or RSS cannot be regarded as reliable at all, and concluded that his claim for non-refoulement protection failed on all applicable grounds.

13.On 26 April 2022 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date in which he just stated that he does not agree with the decision but without explaining why or putting forth any proper ground for his intended challenge. As such, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge of the Board’s decision.

14.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

15.In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

16.Furthermore, the fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim even if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, a decision also agreed and confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

17.In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

18.For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss his application.

19.As the Court has recently been informed by the Immigration Department that the Applicant has since been removed from Hong Kong, accordingly I direct that a request be made to the Director to use his best endeavor to forward a copy of this decision together with a sealed order to the Applicant in India.

Dated the 8^th day of April 2025

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1