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

HCAL 2180/2020

[2025] HKCFI 4749

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2180 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 16 October 2020 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing the appeal against the Director’s Decision as described below.

2.The applicant did not ask for a hearing.

The applicant

3.The applicant is a national of India.  He is an illegal immigrant, having entered Hong Kong as a visitor, but overstayed.  He lodged a non-refoulement claim with the Director of Immigration (“the Director”) on the basis that, if refouled, he will be harmed or killed by 2 persons, namely Karkanman, who was a politician and his business partner on real estate business, and Nagaragan, his creditor, from whom he had borrowed 800,000 rupees in March 2015 (“the loan”).

4.According to the Board, the applicant was unclear as to why his business partner would harm him. [81] However, the Board accepted that he had borrowed the loan from the creditor.  But there was no evidence to show that the creditor intended to harm or kill him.  Details of his claim are set out in the Board’s Decision.  See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL002180_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 Notice of Decision dated 24 June 2024 (“the Director’s Decision”), the Director dismissed the applicant’s claim because it was unsubstantiated.  Besides, state protection is available and internal relocation is viable, which will mitigate or neutralize the applicable risks.

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board.  On 30 September 2020, the Board conducted an oral hearing for his appeal.  The applicant had given oral evidence and answered the Board’s questions.

8.Having considered the evidence, the Board found the facts below.

(1)  There was no evidence that Indian government was involved in the business. [107]

(2)  There was no evidence that the applicant had suffered physical or mental suffering of the requisite severity. [109]

(3)  There was no evidence that the creditor had the intention of harming or killing him. [113]

(4)  The Board rejected the applicant’s claim that he would face real risk of harm from his enemies if he returns to India. [113], [121] & [124]

(5)  State protection will be available to him. [125]

(6)  Internal relocation is viable. [126]-[131]

9.For the reasons above, the Board dismissed his appeal and affirmed the Director’s Decision.

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

10.The applicant has filed Form 86 dated 30 October 2020 for leave to apply for judicial review of the Board’s Decision.

11.In support of his application, the applicant said in his affirmation he disagreed with the Board and it would be dangerous for him to return to India. He did not raise 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 Decision 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 he has any realistic prospect of success in his 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 his application.

Dated the 10^th day of October 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