Sanjiv Kumar v. Torture Claims Appeal Board

Case No.HCAL 94/2020[2025] HKCFI 1368

Court

High Court CFI

Date10 Apr 2025

Judge—

Case Document

100%Judiciary

HCAL 94/2020

[2025] HKCFI 1368

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 94 OF 2020

BETWEEN
	Sanjiv Kumar	Applicant
	and
	Torture Claims Appeal Board	Putative
		Respondent
	and
	Director of Immigration	Putative
		Interested Party

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

consideration of the documents only; or

consideration of the documents and the applicant being absent in open court;

Order by Deputy High Court Judge Michael WONG:

1. On this court’s own motion, the decision in respect of which relief is sought be amended to the “Torture Claims Appeal Board’s decision dated 31 December 2019”.

2. The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.By way of Form 86 dated 9 January 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board ("the Board") dated 31 December 2019 (“the Board's Decision”). The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000094_2020_files/the_Board's_Decision.pdf

2.The Board decided that the applicant did not make out his claims for non-refoulement protection on any of the applicable grounds (except risk of torture) under the Unified Screening Mechanism (“the USM”) and confirmed the decision of the Director of Immigration (“the Director”) dated 19 July 2018 accordingly.

Amendment

3.In Form 86, the applicant wrongly stated the date of the Board’s Decision as 31 December 2020, when it should be 31 December 2019. Thus, on this court’s own motion, the decision in respect of which relief is sought is amended to the Board’s Decision dated 31 December 2019.

The applicant’s case

4.The applicant’s case (as detailed in the Board’s Decision) can be briefly summarised as follows:-

(1)  The applicant is a male Indian born in Haryana, India on 19 April 1982. He had 12 years of education and 10 years’ work experience as farmer and carpenter. He is married. His wife and son are living in Hong Kong.

(2)  The applicant tried to enter Hong Kong from Lo Wu on 23 August 2011 and from Macau on 27 August 2011, but was refused to land on both occasions.

(3)  On the second occasion, the applicant lodged his torture claim, which was rejected by the Director on 20 April 2012.

(4)  On 4 March 2013, the applicant was sentenced to 12 months imprisonment for the offence of “taking employment while being a person in respect of whom a removal order is in force”.

(5)  On 14 May 2013, the applicant lodged his non-refoulement claim.

(6)  The applicant claimed that if returned to India, his paternal uncle and cousin would kill or harm him because of a money and land dispute. The uncle was a member of the Congress Party, which was the ruling party in Haryana, and had good relationship with the Members of the Legislative Assembly and ministers. The uncle was rich and closely related to the police and the village head.

(7)  The Director rejected the applicant’s non-refoulement claim under the USM on 19 July 2018, and the applicant filed an appeal against that decision. As aforesaid, the Director’s decision was confirmed by the Board’s Decision.

Grounds for judicial review

5.The applicant is required to identify clearly the grounds for his intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

6.However, the applicant did not advance any ground for his intended judicial review in Form 86 nor in his supporting affirmation dated 9 January 2020. He merely stated in his affirmation that it was an application for leave to apply for judicial review against the decision of the adjudicator of the Board as well as the Director.

Oral hearing

7.The applicant requested for an oral hearing of the Leave Application. However, he was absent at the hearing on 13 March 2025.

8.This court notes that the Notice of Hearing dated 14 February 2025 for the said hearing was returned by post with the remark “Moved”. Upon further checking with the Director, the applicant’s reported address is still the same as the one used for sending the Notice of Hearing.

9.By virtue of section 37ZA(2) of the Immigration Ordinance, Cap 115, the applicant is under a duty to notify the Director and the Board in writing of any change in his residential address and correspondence address in Hong Kong. Thus, if the applicant had indeed moved out of the reported address, he was in breach of this duty in not notifying the Director and the Board.

10.The said duty is to ensure that the applicant remains contactable. This court is of the view that the applicant was making himself uncontactable in failing to comply with this duty. Without any reasonable excuse, the applicant can be deemed to be avoiding service of the Notice of Hearing in making himself uncontactable.

11.Thus, even though the Notice of Hearing was returned by post, this court is entitled to proceed with the oral hearing and determination of the Leave Application.

12.Moreover, as held in Re Abdus Salam [2019] HKCA 1091, an application for leave to bring judicial review should not be dismissed for want of prosecution merely because the applicant failed to attend the oral hearing of the Leave Application. The correct approach is to treat the applicant as having withdrawn his request for a hearing by reason of the absence at the hearing, and to proceed to determine the Leave Application on its merits.

13.This court will therefore proceed to consider the merits of the Leave Application based on the written materials before this court.

Discussion

14.First of all, only the Board’s Decision is reviewable by judicial process and not the Director’s decision, as there are established statutory procedures of appeal from the Director to the Board and the applicant had invoked those procedures. The Director’s decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali, HCAL 2048 of 2018, dated 28.09.2022). Thus, this court will only consider the Leave Application in respect of the Board’s Decision.

15.The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s Decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

16.In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be a reasonably arguable claim which enjoyed realistic prospects of success.

17.Without the applicant raising any specific ground, it is difficult for this court to entertain the Leave Application. However, for the sake of completeness, this court will proceed to examine and scrutinize the Board’s Decision for any error of law, procedural unfairness and irregularities.

18.The Board did not hold an oral hearing in assessing the appeal by the applicant. Having considered the principles and circumstances under which an oral hearing is required as set out in St v Betty Kwan and Another, CACV115/2013, dated 26/06/2014, the Board found that after reviewing the whole case, no worthwhile or effective representation could be made and there would be no procedural unfairness to the applicant if his appeal was determined without an oral hearing. Hence, the Board decided to determine the appeal on paper.

19.The Board found that the low intensity and frequency of past ill-treatment by the applicant’s uncle and cousin suggested a small likelihood of repetition in the future of risk of harm upon his return to India. In the only attack, his cousin was holding an iron rod, he could have killed or seriously harmed the applicant, but he only hit the applicant’s finger and body. It appeared to the Board that his cousin just wanted to retaliate, as he saw his father bleeding resulting from the fight with the applicant. There was also no evidence suggesting that his cousin had a real intention to seriously harm or kill him. Further, the Board found it illogical that his uncle and cousin would threaten to harm or kill him to get the land, which was already legally owned by his uncle.

20.In assessing the availability of state protection and the viability for the applicant’s internal relocation, the Board had referred to the then most updated country of origin information (“COI’) for the applicant’s country from different sources. While there were information showing the problems of corruption by government officials and police inefficiency, there were also reliable COI showing on-going reforms with positive results, and legal protection was available to citizens of India. The Board considered that the applicant should be able to obtain assistance from the police and authorities if he needed it.

21.In assessing the viability of internal relocation, the Board noted the applicant’s assertion that he was unable to relocate to other places in India because his uncle could locate him through his extensive network and his connection with the police. However, the Board found this as just a bare assertion and speculation. The Board concluded that it was unlikely for the uncle as just a member of the Congress Party in Karnal District to be able to mobilize the resources of the whole party to pursue and harm the applicant. Being an able-bodied, educated adult with 10 years of work experience, the applicant could safely relocate to other places within India without undue hardship.

22.The finding of facts was solely within the ambit of the Board. This court finds nothing wrong in the way the Board reached its conclusion based on the evidence available to the Board. This court also agrees with the Board that there was no need to have an oral hearing in the applicant’s case, as the applicant had clearly raised all the relevant matters to the Board on paper.

23.The Board re-assessed the applicant’s claim on all the applicable grounds (except risk of torture) under the USM, namely:-

(a)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance;

(b)  risk of violation of right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance; and

(c)  risk of persecution with reference to the non-refoulement principles under Article 33 of the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol.

24.After due consideration of the law and the evidence as presented by the applicant, the Board concluded that he was not entitled to non-refoulement protection under any of the aforesaid applicable grounds.

25.Although the Board did not re-assess the risk of torture under Part VIIC of the Immigration Ordinance, it was unnecessary to consider the same, as the Director had already considered and refused the torture claim previously on 20 April 2012, and there was no petition against that refusal.

26.Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no error of law, procedural unfairness or irrationality in the Board’s Decision.

27.The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision. Thus, the intended judicial review has no realistic prospects of success at all, and the Leave Application must be dismissed.

Conclusion

28.For reasons aforesaid, the Leave Application is dismissed.

Dated the 10^th day of April 2025

( Thomas Chan )
for Registrar, High Court

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

Notes for the applicant: If leave has been granted, the applicant or his solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent/Handed to the applicant/the applicant’s solicitors on: 10/4/2025 Applicant’s ref. no: Nil		Sent/Handed to the putative respondent / the putative respondent’s solicitors / such putative interested parties as may be directed by the Court / the putative interested parties’ solicitors on: 10/4/2025 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative respondent’s ref. no.: USM12653/18/7/403/IN2520 Director of Immigration Putative interested party’s ref. no.: QA T/C 1522/18 (formerly: RBCZ/2000594/14) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)