Gaurav v. Torture Claims Appeal Board
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HCAL 1521/2020 [2025] HKCFI 3950 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1521 OF 2020
Application for Leave to Apply for Judicial Review Following:
Order by Deputy High Court Judge Bruno Chan:
Observations for the Applicant: 1.The Applicant is a 42-year-old national of India who arrived in Hong Kong on 17 April 2008 as a visitor with permission to remain as such up to 1 May 2008 when he did not depart and instead overstayed, and on 14 May 2008 he surrendered to the Immigration Department and raised a torture claim later taken as a non-refoulement claim for protection on the basis that if he returned to India he would be harmed or killed by certain local supporters of the political party Bharatiya Janata Party (“BJP”) as he supported their rival Indian National Congress (“INC”). He was subsequently released on recognizance pending the determination of his claim. 2.The Applicant was born and raised in Ghantaghar Chowk, Ludhiana, Punjab, India before moving with his family to Jalandhar in Punjab where he followed his parents’ footstep to support INC regularly attended their local meetings and activities by putting up the party’s posters and banners in the neighborhood without holding any official post in the party. 3.During the general election in Punjab in December 2007, the Applicant and his mother and siblings together with their fellow INC supporters were assisting in their party’s campaign activities when they were attacked by a group of local BJP supporters with wooden sticks that his mother suffered a head injury that the Applicant immediately escorted his mother to leave the scene to seek medical treatments before returning to their home. 4.On the following day while the Applicant and his elder brother were on their way to the local market, they were confronted by a group of BJP supporters threating to attack them but they managed to make their escape unharmed. 5.Thereafter the Applicant became fearful for his life and fled to Faridabad to take shelter in his aunt’s place, and on 16 April 2008 he departed India for Hong Kong when he subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 18 July 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”). 6.By a Notice of Decision dated 10 November 2016 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”). 7.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real and substantial risk of him being harmed or killed by those local BJP supporters upon his return to India 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 or any political reason for them to specifically target him given that he was just an ordinary INC supporter without holding any official post in the party, that in any event in the absence of 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 to move to other areas of the country away from his home district in large cities where it would be difficult if not impossible for anyone to locate him. 8.On 23 November 2016 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 10 December 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 26 March 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision. 9.In its decision[1] the Board accepted the Applicant’s claim of fear of harm from certain local BJP supporters due to political disputes but found no reliable evidence of any real intention of those BJP supporters to seriously harm or kill him given the fact that his elder brother who was also involved in the conflicts had remained unharmed for years in their home district that it is not accepted that the BJP people would have any political reason to specifically target the Applicant given that he was just an ordinary INC supporter or that there would still be any adverse interest in him after all these years since he left the country in 2008, and that in any event in the absence of 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 anyone that his claim for non-refoulement protection failed on all applicable grounds. 10.On 17 July 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 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 did he request any oral hearing for his application. 11.By then the Applicant was also out of time with his application, as Order 53 rule 4(1) of the Rules of the High Court, Cap. 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made. 12.As the last day of the three-month period for him to file his Form 86 fell on 26 June 2019, the Applicant was therefore more than 1 year late with his application, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393. 13.In the Applicant’s case, a delay of more than 1 year must be considered as very substantial and inordinate, for which he did not provide any explanation or reasons in his Form or affirmation, and as the record shows that the decision was sent on the same day of 26 March 2019 to his then reported address without being returned through undelivered post, I am unable to see any good or valid reason for his such serious delay. 14.As for the merits, if any, of his intended application, as noted above that the Applicant has also failed to put forward any proper ground for his intended challenge, and in the absence of any error of law or irrationality or procedural unfairness in his proceed before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any merits in his intended application either. 15.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. 16.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 even 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. 17.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. 18.For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his serious delay, I refuse to extend time and accordingly dismiss his leave application. Dated the 8th day of September 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 |
Cases cited in this judgment