Surinder v. Torture Claims Appeal Board

HCAL 1230 of 2020

[2025] HKCFI 4093

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1230 of 2020

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 9 June 2020 of the Torture Claims Appeal Board (“the Board’s Decision).

2.The applicant did not request an oral hearing.

The applicant

3.The applicant is a national of India. She came to Hong Kong on 16 December 2014 and overstayed her visa. She surrendered to Immigration Department on 6 January 2015 where she lodged a non-refoulement claim on the basis that, if refouled, she will be harmed or killed by the supporters of Shiromani Akali Dao Party (“SAD”), namely Rinko and Suraj and their people due to a political dispute between them and her husband and two sons.

4.According to the applicant, the SAD people asked her husband and her two sons to join SAD. They refused whereupon they attacked them and threatened them with death. They had reported the matters to police, which took no action. Details of her claim are set out in the Board’s Decision. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001230_2020_files/the_Board's_Decision.pdf.

The Director’s Decision

5.The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

6.By way of the Director’s Decision dated 11 July 2018, the Director dismissed the applicant’s claim because it was unsubstantiated. Besides, state protection will be available and internal relocation is viable, which will mitigate or neutralize the applicable risks if she returns to India.

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board. On 5 September 2019, the Board conducted an oral hearing for her. She had given oral evidence and answered the Board’s questions.

8.Having considered the evidence, the Board found:

(1)  the applicant was not harmed by her enemies even after her sons had left India, which led the Board to believe that her enemies would not harm her; [34]

(2)  on the credible evidence before the Board, the Board did not consider she would face any real risk of proscribed harm from the enemies if she returned to India. [35]

9.For the above reasons, the Board dismissed her appeal.

Application for leave to apply for judicial review of the Board’s Decision

10.The applicant has filed Form 86 dated 19 June 2020 for leave to apply for judicial review of the Board’s Decision.

11.The applicant has not raised any specific ground to challenge the Board’s Decision.

DISCUSSION

12.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

13.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

14.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). 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.”

15.The applicant fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.

DISPOSITION

16.I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

Dated the 30^th 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