Gourav v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 81/2025, [2025] HKCA 869

On Appeal from [2025] HKCFI 397

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 81 OF 2025

(ON APPEAL FROM HCAL NO 2034 OF 2024)

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J U D G M E N T

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Hon Cheng J (giving the Judgment of the Court):

Introduction

1.This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“Judge”) on 11 February 2025[1] refusing to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 21 October 2024.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 2 August 2024 rejecting the applicant’s non-refoulement claim.

Background

2.The applicant is a national of India born in 2003.  On 13 June 2024, he was refused entry into Hong Kong.  He raised a claim for non-refoulement protection on the same day and submitted a non-refoulment claim form on 8 July 2024.  The applicant’s claim was made on the basis that if he returned to India, his neighbour (Vikram) would harm or kill him due to their land dispute over the applicant’s family land.  The factual background of the applicant’s claim was set out at [38] of the Board’s decision.

3.By notice of decision dated 2 August 2024, the Director assessed the applicant’s claim in relation to all applicable risks and determined it against him.  Those grounds are BOR 3 risk,[2] persecution risk,[3] torture risk[4] and BOR 2 risk.[5] 

4.The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 15 October 2024, during which the applicant gave evidence and answered questions from the Board. Based on the evidence before it, the Board did not accept that Vikram would harm or kill the applicant if he returned to India in light of his relatively minor past injuries and of the fact that his father continued to work on the family land, and found that there was nothing to suggest that Vikram had influence outside their local home area or that the local police would not help the applicant as he did successfully lodge a complaint against Vikram with the local police.

5.The Board proceeded to consider the risk of harm faced by the applicant if he was refouled to India.  It found there was in fact no real risk of harm if the applicant returned to India, because the threat of harm was localised, the risk of harm did not reach the minimum level of severity, Vikram was a non-state actor, reasonable state protection would be available, and internal relocation to Darjeeling or Pune would be viable for the applicant.   

6.In conclusion, the Board held that there was no real risk of harm for the applicant in the event of refoulement to India.  By its written decision dated 21 October 2024, the Board dismissed the applicant’s appeal in respect of all the applicable grounds and confirmed the Director’s decision.

The Judge’s decision in the court below

7.On 6 November 2024, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision.  His grounds for judicial review were, essentially, that the Director failed to give proper weight to state acquiescence in the country, that the Board failed to properly balance country of origin information and the applicant’s personal background, that the Board unreasonably required the applicant to respond to questions on the spot, and that the Board dismissed the appeal based on findings that should have led to the appeal being allowed.   

8.The Judge considered the application on the basis of the documents alone as the applicant did not appear at the hearing fixed on 9 January 2025.  On 11 February 2025, the Judge issued his decision, refusing to grant leave to apply for judicial review.  The reasons were set out in [11] to [15] of the Form CALL-1 as follows:

“ 11. These are however all just bare and vague assertions containing a few key words or phrases but without any necessary or relevant particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy were State acquiescence or extra-judicial killings to the Applicant’s case when on the factual basis of even his own case that it was a private land dispute between his father and his neighbour only without any official involvement or political element at all. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant who also failed to attend the scheduled hearing of his application without any explanation, I do not find any of his listed grounds reasonably arguable 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 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.

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.”

Appeal to this Court

9.On 19 February 2025, the applicant filed his Notice of Appeal against the Judge’s decision.  His stated ground of appeal was that the Director and the Board did not determine his case fairly. 

10.The applicant has lodged written submissions in which he states that there was a lack of legal and language assistance provided to him and that the Board’s decision to refuse his appeal was irrational and procedurally unfair.  No particulars in relation to his case were provided. 

11.The applicant did not appear at the hearing of the appeal. In the circumstances, we will determine the appeal on the basis of the available documents and written submissions of the applicant.

Discussion

12.In assessing the merits of the appeal, we have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal.  The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.  In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

13.In any event, in the present case, the Board found that there was no real risk of harm upon refoulement as alleged, because the threat of harm was localized, the risk of harm did not reach the minimum level of severity, Vikram was a non-state actor, reasonable state protection would be available, and internal relocation to Darjeeling or Pune would be viable for the applicant.  These are findings of fact open to the Board based on the evidence it received and for the reasons it gave. The applicant has failed to show any reasonably arguable public law error in relation to the Board’s decision.

14.As to the complaint about the lack of legal and language assistance, the Court of Appeal has repeatedly stated that as a matter of law, it is not the case that a non-refoulement claimant is entitled to free legal representation at all stages of the process, and that the high standard of fairness required by law does not entail an interpretation service being made available to an applicant at all times as he desires: Re Zunariyah [2018] HKCA 14 at [18]; Re Zahid Abbas [2018] HKCA 15 at [11] and Re Tariq Farhan [2018] HKCA 17 at [11].  We note that all the court documents filed in this appeal and in the court below were in English.  It is thus clear that either the applicant was himself conversant with the English language or he had access to language assistance of his own if he found it necessary.  Further, we note that the applicant was legally represented in the initial preparation of his case in the completion of the non-refoulement claim form and screening interview with the Director, which formed the basis of his present claim. Thus, we do not find the non-availability of legal representation or language assistance in the processes before the court to amount to any procedural unfairness.

15.Equally, the applicant has not been able to demonstrate any error in the decision of the Judge or advance any viable ground of appeal against the Judge’s decision.  We are not satisfied that there is any error in the Judge’s decision.

16.The applicant’s appeal is accordingly dismissed.

The Applicant, unrepresented, did not appear