Case Document

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HCAL 915/2020

[2025] HKCFI 2816

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 915 OF 2020

BETWEEN
	Sunil 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 (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 32-year-old national of India who entered Hong Kong illegally on 17 March 2015 and surrendered to the Immigration Department on 14 April 2015 when raised a non-refoulement claim for protection on the basis that if he returned to India he would be harmed or killed by some unknown thugs over their land dispute. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Dhadar of Himachal Pradesh State, India. After leaving school he made his living by distributing pamphlets and posters in his home district.

3.In 2014 his mother purchased a piece of farmland in nearby Village Manakpur, and which she would send the Applicant to inspect once or twice a month.

4.One day in late 2014 when the Applicant visited his mother’s farmland, he saw some unknown thugs occupying the land, and when he approached those men telling them to leave, they threatened him and chased him away.

5.Upon informing his mother of the incident, his mother decided to sell the land, which she subsequently did after a few weeks.

6.However, one day while he was at a bus stop near Village Manakpur where his mother’s farmland used to be, the Applicant was confronted by the same group of unknown thugs who accused him of stealing their land and proceeded to beat him with wooden sticks, and before they left, they warned him that next time if they saw him again they would kill him.

7.While he did not suffer any serious injuries from that attack, the Applicant still became fearful for his life, and so he fled from his home village for Delhi, and on 12 March 2015 he departed India for China, and from there he later sneaked into Hong Kong and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 27 August 2018 and attended screening interview before the Immigration Department with legal representation.

8.By a Notice of Decision dated 19 September 2018 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”).

9.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 unknown thugs 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 when they could have done so during that incident or thereafter, that in any event it was a private land dispute between the Applicant and those unknown thugs 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 1.2 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 where he had stayed before without incidents and where it would be difficult if not impossible for anyone to locate him.

10.On 27 September 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which the Board did not hold any oral hearing and proceeded to deal with it in the absence of the Applicant and on papers based on the material and information earlier provided by the Applicant to the Director and available in the hearing bundle before the Board. On 6 May 2020 the Board dismissed the appeal and also confirmed the Director’s decision.

11.In its decision the Board did not take any issue with the Applicant’s claim and accepted it as stated by him but found no reliable evidence of any real intention of those unknown thugs to seriously harm or kill him despite all the time and opportunity for them to do so prior to his departure from India, and that in any event it was a private land dispute between 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 those unknown thugs that his claim for non-refoulement protection failed on all applicable grounds.

12.On 15 May 2020 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 made bare assertions that those unknown thugs are still looking for him and that the Indian authorities would not take his case seriously but without providing any necessary or relevant details or evidence to corroborate such assertions, nor did he put forward 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.

13.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.

14.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.

15.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.

16.Moreover, the Applicant recently on 20 March 2025 filed an affirmation requesting to withdraw his application as he now wants to return to India but without any explanation as to what has happened to his claimed risk in his home country.

17.In the premises, as I am for the given reasons 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 17^th day of July 2025

(Chung Lai Fan, Christine)
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 the Applicant’s 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 to the Applicant on 17 July 2025 Sunil Kumar Applicant’s ref. no.: Nil.		Sent 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 17 July 2025 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 13622/18/9/383/IN2695 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 3604/18 (Formerly RBCZ 13061/15(T8I46)) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)