Case Document

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HCAL 14/2020

[2025] HKCFI 3816

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNO 14 OF 2020

	Aster	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;

Order by Hon S T Poon J:

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.The Applicant is a 31-year-old national of India who arrived in Hong Kong on 20 August 2015 as a visitor with permission to remain as such until 4 September 2015 when she did not depart and overstayed. On 21 September 2015 she surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if she returned to India she would be harmed or killed by her cousin who was a village leader of the Shiromani Akali Dal (“SAD”) for her religious conversion from Sikhism to Christianity. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Village Wanjanwala, Tehsil Ajnala, District Amritsar, Punjab, India in a Sikh family. Whilst studying at elementary school the Applicant had a classmate with whom she went to church and later in 2015 the Applicant decided to convert to Christianity and was baptized. In July 2015, the Applicant revealed to her family of her religious conversion.

3.Her father was concerned that the Sikh community would not tolerate her conversion and was worried about her safety, and therefore he arranged the Applicant to come to Hong Kong. Indeed whilst the Applicant was in Hong Kong, her parents informed her that one of the Applicant’s cousin living in her home village has threatened to kill her.

4.Fearing for her own safety, the Applicant was afraid to return to her home village in India, she overstayed after her arrival in Hong Kong on 20 August 2015 and she subsequently raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 28 March 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.By a Notice of Decision dated 25 April 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 her 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”).

6.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial ground for believing that she would be in danger of being harmed or killed by her cousin upon her return to India due to the low intensity and frequency of past ill-treatment from him, that she has never suffered any mental or physical harm from anyone, that there is no evidence of any real intention of her cousin to seriously harm or kill her other than her own speculation, that in any event they were private and personal disputes between the 2 of them 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 her home district in large cities such as Mumbai or Nagaland where it would be difficult if not impossible for her cousin to locate her.

7.On 7 May 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 3 October 2019 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 18 December 2019, her appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence in the circumstances regarding her conversion of faith that it doubted her claim of fear of harm from her cousin that caused her to come to Hong Kong to seek protection, that her lack of attempt to contact any church or priest in Hong Kong which was the centerpiece of her claim further undermined the credibility and that her claim for non-refoulement protection failed on all applicable grounds.

9.On 2 January 2020 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form or in her supporting affirmation of the same date in which she just stated that she is not satisfied with the decision but without putting forth any proper ground for her intended challenge, nor was she able to put forward any proper ground for her intended challenge at the hearing of her application. As such, and in the absence of any error of law or irrationality or procedural unfairness in her 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 her intended challenge.

10.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. 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 vDirector of Immigration [2018] HKCA 524.

11.In the Applicant’s case, the Board rejected her claim essentially on its adverse finding as to her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 22 – 32 of its decision and with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim during her appeal hearing, and in the absence of any error of law or judicial unfairness in her 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 findings of the Board.

12.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 if real is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of India, a decision also 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.

13.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.

14.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 her application.

Dated the 29^th day of August 2025.

(Yau Shiu-lun)
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 29 August 2025 Aster 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 29 August 2025 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 11477/18/5/62/IN2255 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 810/18 (formerly RBCZ 11024/16), Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)