Saraswat Deepak v. Torture Claims Appeal Board

HCAL 66/2025

[2026] HKCFI 3759

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 66 OF 2025

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 Bruno Chan:

The application for leave to apply for Judicial Review be dismissed. 

Observations for the Applicant:

1.The Applicant is a 43-year-old national of India who arrived in Hong Kong on 3 November 2023 as a visitor with permission to remain as such up to 17 November 2023 when he did not depart and instead overstayed, and was arrested by police on 21 November 2023.  After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim for protection on the basis that if he returned to India he would be harmed or killed by his creditor over their monetary dispute.  He was subsequently released on recognizance pending the determination of his claim.  

2.The Applicant was born and raised in Bholanath Nagar, Shahdara Delhi, India.  After leaving school he worked as a taxi driver before owning his commercial taxi business, got married and raised a family with 2 children in his home district. 

3.In 2016 he expanded his business by purchasing another taxi with the help of a loan borrowed from a local finance company to be repaid by monthly instalments with interests which he managed to make from his business income. 

4.However, his business was subsequently badly affected by the COVID-19 pandemic, and by 2019 he defaulted with his loan repayments, whereupon the finance company took court action against him and sent debts-collectors to his home to threaten him to repay his debts, and after being beaten by those men on one occasion in May 2022, the Applicant fled to Jaipur to avoid them.  

5.One day in December 2022 the Applicant was located by those debts-collectors who then abducted him to some remote area where he was kept and beaten for 2 days before he managed to make his escape and fled to Kanpur.

6.In May 2023 the Applicant returned to Delhi to attend the court hearing, and was eventually able to reach a settlement with the finance company, but after having received the agreed payment from the Applicant, the finance company changed their mind and demanded more money from him, and when the Applicant refused to pay more, the finance company threatened to again send their debts-collectors after him. 

7.To avoid further threats and harassments from the finance company, the Applicant therefore on 3 November 2023 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 18 April 2024 and attended screening interview before the Immigration Department with legal representation. 

8.By a Notice of Decision dated 24 July 2024 the Director of Immigration (“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 Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated 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”). 

9.In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his creditor and debts-collectors upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of his creditor to seriously harm or kill him other than to press him to repay his debts, that in any event it was a private monetary dispute between him and his creditor 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”) shows that reasonable internal relocation alternatives are available in India with a large population of 1.4 billion people spread across a vast territory of more than 3.2 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 areas of the country away from his home district in large cities such as Mumbai where it would be difficult if not impossible for his creditor to locate him. 

10.On 6 August 2024 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 19 November 2024 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 13 December 2024 his appeal was dismissed by the Board which also confirmed the Director’s decision. 

11.In its decision[1] the Board accepted the Applicant’s claim of threats from his creditor and debts-collectors but found no reliable evidence of any real intention of them to seriously harm or kill him other than to press him to repay his debts or to pay more money, and that in any event it was a private monetary dispute between him and his creditor 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 alternatives for him to move safely to other parts of the country away from his home district without any risk of being located by his creditor that his claim for non-refoulement protection failed on all applicable grounds. 

12.On 6 January 2025 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)   That the Board erred in its determination of the Applicant’s claim by placing an unnecessarily high threshold in determining the realistic prospect of success;

(2)   That the Board failed to take the Applicant’s unique situation into account fairly or carefully;

(3)   That the Board failed to accept the Applicant’s claimed facts without any fair judgment and totally ignored the fear and danger that he would have to face upon his return to his home country where so many innocent people have been killed when they refused to join the other political party while the authorities failed to provide any protection and that the court failed to provide justice;

(4)   That the Board’s decision was biased and based on the wrong case management power and was merely trying to dispose of the Applicant’s case as quickly as possible without carefully consider all the information and evidence available;

(5)   That the Adjudicator misdirected himself on the law by taking into account that the Applicant had to have experienced torture in the past in order to establish substantial grounds to believe that there was a risk of torture in his case;

(6)   That the Adjudicator failed to carry out sufficient research and inquiry into the COI conditions and without regard to relevant and updated COI research which apply to persons that fit the profile of the Applicant;

(7)   That the Adjudicator failed to take into account or place sufficient weight in relevant COI and instead just cherry-picked COI of little or no relevance to the Applicant’s case;

(8)   That the Adjudicator failed to evaluate whether there exists in India a consistent pattern of gross fragrant or mass violations of human rights or to take such finding in account when making the decision which is Wednesbury unreasonable;

(9)   That the Adjudicator failed to analyse and assess whether state protection exists in India under the extended meaning whether the state had exercised any or sufficient due diligence;

(10)   That the Adjudicator failed to address the issue of internal flight relocation properly in failing to utilize the correct legal test or to take into account or weight on relevant facts in sufficient depth;

(11)   That the Adjudicator made an assessment of the Applicant’s claim without providing notice in advance of the screening interview or ask the Applicant any questions of situations in India which amount to procedural impropriety and gross unfairness in the assessment procedure. 

13.These are however all just bare and vague assertions of the Applicant 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 was torture to the Applicant’s case when on the factual basis of even his own case that it was a private monetary dispute between him and his creditor only without ever being tortured by anyone at all.  As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for his intended challenge. 

14.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.  

15.In the Applicant’s case, the Board rejected his claim for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board. 

16.Furthermore, the fact is that it has also 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. 

17.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. 

18.Moreover, the Applicant has recently in writing requested to withdraw his application as his issue in his home country has been resolved that it is now safe for him to return to India. 

19.As I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation that it is safe for him to return to his home country, I accordingly dismiss his leave application. 

Dated the 7^th day of July 2026

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