|
HCAL 2260/2020
[2025] HKCFI 4750
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2260 of 2020
|
BETWEEN
|
| |
Mohankumar Vijayakumaresan |
Applicant |
| |
and |
|
| |
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
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;
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 5 November 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.
3. Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.
The applicant
4. The applicant is a national of India. On 5 June 2009, he came to Hong Kong as a visitor. He overstayed and police arrested him on 13 July 2009. He lodged a non‑refoulement claim on the basis that, if refouled, he will be harmed or killed by his uncle and cousins over a land dispute. His uncle and cousins wanted to buy his piece of land at a below market price, which he refused. They threatened to kill him. They had also attacked him, killed his grandfather and his father. He had to flee India for safety.
5. 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/HCAL002260_2020_files/the_Board's_Decision.pdf.
The Director’s Decision
6. Since the applicant had lodged a torture claim and the Director rejected his claim, the Director considered the applicant’s claim in relation to the following risks:
a. 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”);
b. 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
c. 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”).
7. By way of Notice of Decision dated 17 May 2018 (“the Director’s Decision”), the Director dismissed the applicant’s claim because it was unsubstantiated.
The Board’s Decision
8. The applicant appealed the Director’s Decision to the Board. On 6 April 2020, the Board conducted an oral hearing for his appeal. The applicant had given oral evidence and answered the Board’s questions.
9. Having considered the evidence, the Board found the facts below.
(1) The applicant was a reliable witness and the Board accepted the alleged facts given by the applicant that he will be subjected to harm if he returns to India. [54]
(2) Having accepted the facts of the applicant’s case, the Board considered state protection and internal relocation in order to determine whether the applicant is eligible for the status of a refugee in Hong Kong. [55] &[63]
(3) The Board found that internal relocation is an option for the applicant and he may live in large city such as Delhi, Kolkata or Mumbai. [65]-[68]
(4) The Board found that the dispute was between private individuals without involving the state. [74]
(5) State protection will be available to the applicant if he returns to India. [74]-[77]
(6) There was no evidence to show the applicant will be subjected to BOR 2 risk if he returns to India. [80]-[81]
10. For the reasons above, the Board dismissed his appeal and confirmed the Director’s Decision.
Application for leave to apply for judicial review of the Board’s Decision
11. The applicant has filed Form 86 dated 16 November 2020 for leave to apply for judicial review of the Board’s Decision.
12. In his affirmation in support of his application, the applicant said that he was dissatisfied with the Board’s Decision because the Board only relied on web information without going to India to see for itself.
DISCUSSION
13. 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).
14. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.
15. 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.”
16. As to the applicant’s ground under paragraph12, it is unnecessary for the Board to go to India to appreciate the situation there because the Board might refer to the country of origin information, which the Board had done before making its decisions.
17. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.
DISPOSITION
18. 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 16th day of October 2025
| |
(Allen LEE)
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 16/10/2025
Mohankumar Vijayakumaresan
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 16/10/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 11771/18/5/356/IN2350
Director of Immigration
Putative Interested Party’s ref. no.: RBCL 3416/09(CZ)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
|