Balram v. Torture Claims Appeal Board

HCAL 340/2025

[2025] HKCFI 2109

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 340 OF 2025

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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;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.The Applicant is a 38-year-old national of India who last arrived in Hong Kong on 26 September 2023 as a visitor with permission to remain as such up to 10 October 2023 when he did not depart and instead overstayed, and on 12 October 2023 he surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if he returned to India he would be harmed or killed by the family of a fellow villager who blamed him for the death of the villager.  

2.The Applicant was born and raised in a village in Shahpur Phagota, Uttar Pradesh, India. After leaving school he worked in a beverage company and then as a sub-contractor for a major technology and construction company, got married and raised a family with 2 children in his home village.

3.One day in late 2022 a co-worker under his supervision and also from his home village by the name of Dilshad died in an accident while working in Alipur, and although his family was subsequently compensated by the company, his 2 brothers blamed the Applicant for their brother’s death and threatened to kill him in revenge, and to avoid their threats the Applicant in early 2023 moved to Jammu and stayed there for several months in the hope that the threats from the Dilshad brothers would die down.   

4.However, shortly after returning to his home village in June 2023, one day in July 2023 the Applicant ran into the Dilshad brothers in the village when they again threatened to kill him in revenge for the death of their brother, but as there was a crowd in the street, the Dilshad brothers then left without harming the Applicant.

5.After the incident the Applicant became fearful for his life and fled to Saharanpur to take shelter in his sister’s place, and on 26 September 2023 he departed India for Hong Kong and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 5 August 2024 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.Whilst being released on recognizance pending the determination of his claim, the Applicant was arrested on 5 March 2024 for undertaking unauthorized employment for which he was subsequently convicted and sentenced to prison for 15 months.              

7.By a Notice of Decision dated 26 August 2024 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”).

8.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 the Dilshad brothers upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill him other than angry words and empty threats, that in any event it was a private personal dispute between him and the Dilshad brothers only without any official involvement 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 Delhi or Mumbai where it would be difficult if not impossible for the Dilshad brothers to locate him.

9.On 3 September 2024 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 19 November 2024 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 6 December 2024 his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.In its decision the Board accepted the Applicant’s claim of fear of harm from the Dilshad brothers that caused him to leave his country to come to Hong Kong to seek protection, but found no reliable evidence of any real intention of them to seriously harm or kill the Applicant, and that in any event it was a private and personal dispute between the 3 of them only without any official involvement that state or police protection would be available to the Applicant upon his return to India as well as reasonable internal relocation alternatives for him to move safely to other parts of the country away from his home district without any risk of being located by the Dilshad brothers that his claim for non-refoulement protection failed on all applicable grounds.    

11.On 6 February 2025 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 his supporting affirmation of the same date in which he just repeated his claim as before but without putting forth any proper ground for his intended challenge, nor was he able to do so at the hearing of his application. 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.

12.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.

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

14.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.

15.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.

Dated the 27^th day of May 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