Case Document

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HCAL 15/2020

[2025] HKCFI 3815

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 15 OF 2020

BETWEEN
	Ali Arshad	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 35-year-old national of India who arrived in Hong Kong on 24 July 2016 as a visitor with permission to remain as such until 7 August 2016 when he did not depart and overstayed. On 8 August 2016 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 his creditor over his unpaid debts. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Ekalpore Lane, Kolkata, West Bengal, India. After leaving school he started his own business as a supplier of mobile phone accessories since 2012 by buying his goods in China and carrying them with him using his flight passenger baggage. As the business was profitable, the Applicant wanted to expand his business and persuaded an influential person in his home area to invest in his business.

3.However, as time went by he was charged an increasingly large amount of excise duty importing his goods from China to India which in mid 2015 reached 200% to 300%. The Applicant and his business partner had to borrow a loan from a local money-lender to keep their business afloat. It turned out that the initial investment made by the Applicant’s business partner was also borrowed from the same money-lender.

4.In May 2016, the Applicant’s storeroom was raided by the Central Customs and Excise department in India and all of his goods were seized, and from then on his business deteriorated and the Applicant could no longer keep up with his repayment of his loan.

5.In July 2016, the money-lender sent people to attack the Applicant’s business partner who suffered injuries and was hospitalised. The men also came to the Applicant’s home who then threatened the Applicant’s mother to disclose his whereabouts in order to kill him.

6.Taking his family’s advice the Applicant then relocated to his aunt’s place for about 18 or 19 days and on 24 July 2016 he departed India for Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 15 October 2018 and attended screening interview before the Immigration Department with legal representation.

7.By a Notice of Decision dated 8 November 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”).

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 his creditor and followers upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that he has never suffered any mental or physical harm, that there is no evidence of any real intention of his creditor to seriously harm or kill him other than to press him to repay his debts, that in any event they were private monetary disputes between him and his creditor 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 Chennai or Delhi where it would be difficult if not impossible for his creditors to locate him.

9.On 21 November 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 dealt with it in his absence and on paper. On 30 December 2019, his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.In its decision the Board found that there was no evidence at all showing that Applicant has received any kind of harm from his creditor and it rejected his claim of fear of harm from his creditor that caused him to leave his country to come to Hong Kong to seek protection, and that in any event it was a private monetary dispute between the two of them without any official involvement that state or police protection would be available to the Applicant upon his return to India, and that his claim for non-refoulement protection failed on all applicable grounds.

11.On 2 January 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 stated that he is not satisfied with the decision but without putting forth any proper ground for his intended challenge, nor was he able to put forward any proper ground for his intended challenge 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. 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 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 Ali Arshad 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 14496/18/11/339/IN2864 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 4238/18 (formerly RBCZ 13033/16), Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)