Vijay Kumar v. Torture Claims Appeal Board

HCAL 2486/2020

[2025] HKCFI 4959

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2486 OF 2020

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

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.The Applicant is a 40-year-old national of India who arrived in Hong Kong on 6 May 2015 as a visitor with permission to remain as such up to 20 May 2015 when he did not depart and instead overstayed, and was arrested by police on 8 June 2015. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his paternal uncle over some land dispute between his uncle and his father in his home village. He was subsequently being released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Khokhar Duakhri, India. After leaving school he assisted in his father’s farming on his father’s farmland but which was coveted by his paternal uncle who had always tried to occupy the land for his own use and which had led to constant conflicts with his father.

3.One day in November 2014 while working on his father’s farmland, the Applicant was approached by his uncle and followers who demanded him to leave as his uncle claimed that it was his land, and when the Applicant refused, his uncle then made threats against him before leaving angrily.

4.Several weeks later in December 2014 while the Applicant was working on his father’s farmland, his uncle returned with his followers to again demand him to leave, and when he refused, they then beat him with wooden sticks so severely that the Applicant lost consciousness, and was subsequently taken by his family to a local hospital for medical treatments.

5.On another day in January 2015 when on his way home from work and ran into his uncle, the Applicant was threatened by his uncle that next time he would be killed if he still ignored the warning no to work on the farmland.

6.As a result the Applicant became fearful for his life and fled from his home to hide in a friend’s place before moving on to Delhi, and on 4 May 2015 he departed India for Hong Kong where he subsequently overstayed, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 27 February 2018 and attended screening interview before the Immigration Department with legal representation.

7.By a Notice of Decision dated 4 April 2018 the Director of Immigration (“The 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 Claim”), risk of his absolute and non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) 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”).

8.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his uncle upon his return to India as low due to the low intensity and frequency of past ill-treatment from his uncle, that there is no reliable evidence of his uncle to seriously harm or kill him, that in any event it was a private land dispute between his uncle and his father only without 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 million square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other area of the country away from his home district in large cities such as Delhi or Mumbai where it would be difficult if not impossible for his uncle to locate him.

9.On 17 April 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“The Board”) against the Director’s decision, and for which he attended an oral hearing on 11 November 2019 before the Board during which he gave oral evidence and answered questions raised of his claim by the Adjudicator for the Board. On 4 November 2020 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.In its decision[1] the Board accepted the Applicant’s claim of threats from his uncle over the land dispute between his uncle and his father in his home village but found no reliable evidence of any real intention of his uncle to seriously harm or kill him, that in any event it was a private land dispute between his uncle and his father only without 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 for him to move safely to other parts of the country away from his home district without any risk of being located by his uncle that his claim for non-refoulement protection failed on all applicable grounds.

11.On 22 December 2020 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in his supporting affirmation of the same date he put forward various grounds for his intended challenge, of which he confirmed at the hearing as below:

(1)  That he was not given any legal representation or assistance for his appeal before the Board that he was unable to seek any advice or to challenge the decision;

(2)  That he was not provided with any language assistance to explain the decision to him for him to understand the reasons of the Board for rejecting his claim or dismissing his appeal as it was written in English which he cannot read or understand;

(3)  That the Adjudicator had exercised his case management power wrongfully;

(4)  That the Board failed to carry out sufficient research or inquiry into the COI conditions in order to have a proper understanding of the Applicant’s circumstances and arrived at an unfair decision in dismissing his case on all the applicable grounds;

(5)  That the Adjudicator failed to consider or put sufficient weight on relevant information found in the limited COI research cited in the decision which were in the Applicant’s favour and instead relied on information of no or little relevance to his case in arriving in an unreasonable decision in dismissing his claim.

12.For his complaint under Ground (1) that the Applicant was not provided with legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37, and Re Zafar Muazam [2018] HKCA 176.

13.The Applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify and make representations in his appeal hearing before the Board and to answer questions put to him by the Adjudicator without difficulty. In the circumstances, I do not find anything amiss arising from the lack of legal representation in his appeal process, and I do not find this ground reasonably arguable for his intended challenge.

14.As for his complaint under Ground (2) of not being provided with any language assistance for his appeal before the Board, the fact is that the Applicant was assisted by an interpreter at his appeal hearing before the Board, and in the absence of any particulars or specifics from him to suggest that the basis of his claim has been wrongly interpreted or misunderstood by the Board, I find this complaint of the Applicant simply speculative and without any basis.

15.For his remaining complaints under Grounds (3) – (5), they are all just bare and vague assertions of the Applicant without any relevant or necessary details or particulars or elaboration as to how they apply to his case, or how did the Board exercise its case management power wrongfully or how did the Adjudicator fail to conduct the necessary assessment of the relevant COI in the determination of his claim or at all. As such, and as the Applicant has failed to provide any necessary or relevant details or particulars or elaboration as to these complaints apply to his case, I do not find any of them reasonably arguable for his intended challenge either.

16.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim where the proper occasion for an 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 risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them, and 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 properly and clearly identified by the applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see 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.

17.In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their 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.

18.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.

19.For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.

Dated the 21^st 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