Bahadur v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
|
HCAL 118/2024 [2025] HKCFI 2533 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 118 OF 2024 _____________ BETWEEN
_____________
_______________ J U D G M E N T _______________ THE APPLICATION 1.The applicant applies for leave to apply for judicial review of the Decision dated 14 December 2023 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing the appeal against the Director’s Decision as described below. 2.The applicant asked for a hearing. He appeared before the Court on 14 May 2025. 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 33, is a national of India. On 20 March 2014, he was arrested by police and admitted that he had entered Hong Kong illegally. He lodged a non-refoulement claim with the Director of Immigration. He failed to submit the Non-refoulement Claim Form to the immigration officer and therefore his claim was deemed to have been withdrawn. On 10 July 2023, he was notified that he was permitted to lodge a subsequent claim. Since arriving in Hong Kong, he had committed offences, for which he was sentenced to imprisonment. 5.The applicant’s claim is based on his allegations that, if refouled, he will be harmed of killed by the father of a girl called Manpreet, whom he fell in love in school because her father disapproved of their relationship. He also fears that he will be harmed or killed by his family brother because he had converted from Hinduism to Islam. 6.According to the applicant, Manpreet’s family were Sikhs and his family was Hindus and Manpreet’s father was wealthy and well connect with the political party of Shiromani Akali Dal. He had gone to the applicant’s house together with four or five people to beat him up by slapping. He managed to escape. Upon his friend’s advice he left India for China. When he was in Hong Kong, he had committed offences and was imprisoned. There he met a relative of his village called Mandy. He told him about his conversion from Hinduism to Islam. Mandy was repatriated to India and he told the applicant’s family about his conversion. His family and the villagers were furious about this. 7.Details of his claim are set out at paragraph 7 of the Board’s Decision. The Director’s Decision 8.The Director considered the applicant’s claim in relation to the following risks:
9.By way of the Director’s Decision, the Director dismissed the applicant’s claim for the reason that his claim was not substantiated. The Director found that from his experience in India, the risk of him being harmed or killed if eh returns to India is low; that state protection will be available; and internal relocation is viable. See paragraphs 27-29 of the Board’s Decision. The Board’s Decision 10.The applicant appealed the Director’s Decision to the Board. On 17 November 2023, the Board conducted an oral hearing for his appeal. 11.The Board had made quite extensive examination of the evidence given by the applicant before it. Having considered the evidence, the Board found that the facts of his case do not support his claim on the applicable risks. See paragraphs 84 (Persecution risk), 90 (Torture risk), 94 (BOR 3 risk) and 98 (BOR 2 risk). Application for leave to apply for judicial review of the Board’s Decision 12.The applicant has filed Form 86 dated 10 January 2014 for leave to apply for judicial review of the Board’s Decision. 13.In his affirmation in support of his application, the applicant has raised, insofar as the Board’s Decision is concerned, the grounds to challenge the Board’s Decision below.
DISCUSSION 14.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). 15.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant submitted his written submissions, in which he repeated his story of being attacked and conversion into Muslim from Hinduism and his friends hated him. Now he asked this Court to allow him to stay in Hong Kong and he is being detained in Castle Peak Bay Immigration Center. 16.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:
17.As to the grounds under paragraph 13, he is not entitled to translation or free legal representation at all stages of the proceedings[1]. Ground (2) and Ground (4) are his bare assertions without any evidence in support. They are not valid to challenge the Board’s Decision. 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 appeared in person. [1] The Court of Appeal in Re: Sharma Poonam [2019] HKCA 804, held:
|
Cases cited in this judgment