Vikas Shridhara Chowta v. Torture Claims Appeal Board

HCAL 977/2025

[2026] HKCFI 3919

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 977 OF 2025

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 / the Applicant being absent in open court;

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 33-year-old national of India who arrived in Hong Kong on 12 February 2024 as a visitor with permission to remain as such up to 26 February 2024 when he did not depart and instead overstayed, and on 17 April 2024 he surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if he returned to India he would be harmed or killed by his girlfriend’s family who disapproved of their relationship. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Kakkara Bettu, Moddabettu, Udupi, Karnataka, India. After graduating from university, he worked as an account officer in a company in his home district to make his living.

3.In 2018 he started dating one of his colleagues by the name of Jyoti who was from a wealthy family in his home district, but as they were from different castes, they kept their relationship in low profile to avoid attracting attention of her family.

4.However, one day in November 2023 Jyoti’s brother approached the Applicant to tell him to stop seeing Jyoti as her family did not approve of their relationship due to their different castes, and soon Jyoti was told by her family to leave the company, which she did and went to work in a different company in Mumbai.

5.Still the Applicant and Jyoti continued to meet up secretly and planned to get married in that Jyoti would try to convince her family to accept the Applicant to be her husband.

6.Feeling hopeful that Jyoti would be able to do so, the Applicant therefore took a holiday coming to Hong Kong on 12 February 2024 for sightseeing, during which however he received a phone call from a friend in India warning him that Jyoti’s family were furious about their intention to get married and had planned to stop it by killing the Applicant, and so the Applicant was afraid to return to India and therefore overstayed in Hong Kong to seek non-refoulement for protection, for which he completed a Non‑refoulement Claim Form (“NCF”) on 9 August 2024 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

7.By a Notice of Decision dated 11 February 2025 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”).

8.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 the family of his girlfriend Jyoti 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 them to seriously harm or kill him other than to deter him from seeing Jyoti, that in any event it was a private personal dispute between him and Jyoti’s family 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 2.9 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 Delhi or Chennai where it would be difficult if not impossible for anyone to locate him.

9.On 20 February 2025 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 3 April 2025 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 15 April 2025 his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.In its decision[1] the Board found no reliable evidence of any real intention of Jyoti’s family to seriously harm or kill him other than to deter him from seeing her, and that in any event it was a private and personal dispute between him and Jyoti’s family 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 anyone that his claim for non-refoulement protection failed on all applicable grounds. 

11.On 23 April 2025 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or his supporting affirmation of the same date to which he just attached a copy of the decision but without putting forth any proper ground for his intended challenge. As such, and in the absence of any error of law or irrationality 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 for his intended challenge of the Board’s decision.

12.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.

13.In the Applicant’s case, the fact is that it has 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 parts 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.                

14.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.

15.Moreover, the Applicant has recently on 4 May 2026 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.

16.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 15^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