Vikas v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
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HCAL 705/2022 [2026] HKCFI 5172 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 705 of 2022 BETWEEN
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 To: Leave to apply for Judicial Review be refused. Observations for the Applicant: Introduction 1.This is the Applicant’s application by Form 86 filed on 2 August 2022 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 28 July 2022 (the “2022 Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 27 October 2021 (the “2021 Notice”), refusing his application for non-refoulement protection. This claim is a subsequent claim. Previously, he had lodged a claim arising from the same cause and same source of harm (the “previous claim”). 2.The Applicant is an Indian national, now aged 38. He had come to Hong Kong on 28 August 2013 and overstayed since 12 September 2013. Then he lodged the previous claim for non-refoulement protection on 9 November 2013. That previous claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”) and rejected by the Director. His appeal against the Director’s decision was dismissed by the Board on 23 March 2017. He was then repatriated to India on 16 August 2019 under a removal order. A year later, on 17 August 2020, he surrendered to the Immigration Department, claiming to have sneaked into Hong Kong on 21 December 2019. Then he lodged this subsequent claim. His subsequent claim was rejected by the Director’s 2021 Notice. His appeal against the decision in that notice was dismissed by the Board’s 2022 Decision. He now applies for leave to apply for judicial review of that 2022 Decision. The Applicant’s case 3.The factual background leading to the present application, the basis of the Applicant’s claim, the arguments he advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision. These will not be repeated here. The hyperlink to the Board’s Decision is included below[1] for reference. His claim is that he will be harmed or killed by his two brothers, his paternal aunt and her two sons, i.e. the Applicant’s cousins (collectively, “his enemies”), who are supporters of the Shiromani Akali dal Party (the “SAD”). 4.The gist of the Applicant’s case is as follows. He used to live in Neelpur in District Patiala. His father had three sons and one daughter. Before his father passed away in 2008, his father had verbally transferred his plot of land (the “Land”) equally to him and his two elder brothers. One day in mid-2012, the Applicant told his brothers that he wanted to sell his share of the land to them or to outsiders at market price. But they ignored him. He then told his aunt about his wish, but his aunt told him not to take any action. His aunt’s family owns a piece of land adjacent to the Land. 5.One day about six months later in early 2013, the Applicant bumped into his two cousins and two SAD supporters in the street. His cousins threatened to kill him if he asked for his share of the Land or sold it to someone else. They also warned that they would eventually took his share of the Land away. He did not report the incident to the police because he thought his cousins would not harm him. 6.Two to three days later, his enemies went to his home. When he repeated his wish to sell his share in the Land, they became angry and assaulted him with bare hands. After a minute or two his mother and some villagers came to stop the assault. The Applicant made a report to the police station, but the police did not take any action. He complained to the village head, Bant Singh. But Singh refused to handle his case. He believed the police and Singh had connections with his aunt and as the SAD was the ruling party in Punjab and the police only listened to SAD supporters. 7.The Applicant did not know why his brothers joined hand with his aunt and cousins and why they wanted to get his share of the Land. Out of fear for his enemies, he left his home village. He first stayed with his friend, Jassi, and then moved to Chunna Bhathi, about 5 to 6 kilometres away. Nothing eventful happened. 8.After five to six months, he returned to his home. One night two months later, while the Applicant, Jassi and two other friends were having drinks in a restaurant, his cousin and five SAD supporters arrived in a jeep. His cousins asked him to give his share of the Land to them. An argument ensued. His cousins and the SAD supporters assaulted him. The incident lasted for an hour until two uniformed policemen came to separate them and told him to leave with his friends. The Applicant did not make a complaint to the police because of his past experience. He only sustained minor injuries. 9.The Applicant’s mother advised him not to stay in Neelpur anymore. On the following day, he started hiding at different places in Patiala until he left India on 25 August 2013 and came to Hong Kong. While in Hong Kong, he was told by his mother that his enemies had possession of his portion of the Land. He said his aunt had just started a property agency with her two sons and the Land document was kept by his aunt. He did not know who was the official owner of the Land. 10.The Applicant does not consider relocation within India viable because his enemies had connection with the police and the SAD. They could locate him immediately upon his return. Based on his previous experience, the police would not help him. 11.After his previous claim was refused by the Board, the Applicant was told by his mother that his enemies were willing to reconcile with him. He therefore informed the Immigration Department that he was willing to return to India. He was repatriated in August 2019. According to the Immigration Department, he was removed under a removal order. 12.During the four months of his brief return to India, a lot of events happened. On his return to India, he stayed with his maternal uncle in Rajasthan. He married. In response to his aunt’s call, he returned to his home in Neelpur alone with a view to resolve their dispute. He met his enemies in the presence of some SAD supporters on the afternoon of his return to Neelpur (the “settlement talk”). He asked for his share of the Land but they refused. They threatened to kill him and eventually beat him with bare hands and feet until some neighbours came to intervene. He returned to his uncle’s home the same day. He did not report the attack to the police and did not go to see a doctor. He took some painkillers for a week. He claimed he sustained internal injuries, had pain on his back and left knee and could not walk properly. His wife left him after learning about his land dispute. While hiding in his uncle’s home, his neighbours told him from time to time that his aunt and cousins were looking for him and threatening to kill him when they found him. He left India in December 2019 for Macau and subsequently sneaked into Hong Kong. 13.He said that his enemies had located him previously and would be able to find him if he returned to India. He did not report the threat to the police because the Indian police are corrupt. The finding of the Board 14.The Applicant testified before the Board. The Board found multiple significant inconsistencies and contradictions between his testimony and his evidence among his two sets of non-refoulement claim forms (“NCFs”) and records of screening interview (“ROIs”) which go the centrepiece of his case. The more significant ones are as follows. 15.The centrepiece of the Applicant’s case is the land dispute over his share of his father’s Land verbally transferred to him and his two brothers. According to the country of origin information (“COI”), Indian land law is very much similar to English or Hong Kong land law in that there is a system of land registration and that transfer of interest in land must be in writing. The Applicant’s evidence is that the transfer was by words of the mouth and not in writing and had not been registered. He said his father should have left a will with his aunt but did not know what was in the will and no one had ever read it to him. Yet, he said in his second NCF that he and his two brothers were the official owners of the Land, but in his first NCF he said he did not know who is the official owner of the Land and that the land document showing the official title of the Land is now kept by his aunt. In his testimony, he agreed with the Board that the land was still under the name of his father. He could not explain the three versions of his evidence as to who is the official owner of the Land. If there is any truth in any of these versions, probably his latest testimony before the Board is closer to the truth. But he did not even adduce any documentary evidence that his late father had a piece of land which is the cause of his dispute with his enemies. He would have no difficulties in obtaining the evidence. He could not sit there and do nothing but leave it to the Board to prove his case for him. 16.In his second NCF, he said he went from his maternal uncle’s home in Parkash back to his home town in Neelpur alone to attend the settlement talk. But in his second ROI, he told the immigration officer that he went with his mother and uncle to his home village. When confronted with the inconsistency, his reply was only that he came along with his mother and his uncle but declined to give an explanation. That was a significant event. On his own case, he agreed to be repatriated because of the offer of settlement. He went all the way for about 250 kilometres from the safe home of his maternal uncle to the risk village to meet with his enemies with his uncle and mother. He was assaulted by his enemies and rushed back to his uncle’s home immediately, obviously with his uncle, if not also with his mother. How could he have forgotten that he went with his uncle and mother to his home village for the settlement talk? Why did he decline to explain the inconsistency? The hearing before the Board is not meant to be a test of memory, inconsistencies are expected. But, for his evidence to be credible, he is expected to be able to give credible explanation for the inconsistencies. If not, it would be open to the Board to find his evidence is not an account of what he had truly experienced but and to find that the inconsistencies evinced a fiction not well fabricated, rather than a failure of memory. 17.The Board found his evidence unreliable and questionable. It found his claim was based on speculation. It was not persuaded, even to the low standard required, that there was any threat of harm from his enemies. Despite that, the Board proceeded to assess his claim on the basis of his evidence. The Applicant had been assaulted three times. The assaults were stopped by passers-by, neighbours, villagers or the police. He never reported the attacks to the police or went to see a doctor. He only suffered some minor injuries. He self-treated himself with medication from a pharmacy and recovered in days. He was also bullied and beaten at home by his brothers. The Board found the alleged injuries, if any, were not serious and did not attain the minimum level of severity. 18.The Board found the injuries he suffered arose out of a personal dispute in which no government officials or state agents were involved. It found the Applicant’s enemies are not state actors. 19.The Board studied extensively into the COI. Despite some shortcomings and corruption in the police, the Indian government has been taking active steps to improve the professionalism of the police and combat corruption. There is nothing to suggest that the Indian government is unwilling, or incapable of enforcing the law and to combat corruption. India has an independent judiciary and there are avenues to complaint about police corruption and misconduct. On balance, the Board found adequate state protection would be available to the Applicant on his return to India and that he can also avoid the risk of harm by internal relocation to other cities, such as Amritsar, Mumbai, Chandigarh, Kolkata, Delhi. The Board found, being an able-bodied young men of his age and working experience, it would not be unduly harsh for him to so relocate. On his own evidence, the Applicant had moved to Chunna Bahti, about 5 to 6 kilometres away from Neelpur for about six months. After his repatriation, he stayed in his maternal uncle’s home in Parkash about 250 kilometres away for five months. Nothing eventful happened outside Neelpur. His risk is localised. 20.Applying the law applicable to the non-refoulement protection to the above finding of fact, the Board also came to the conclusion that the Applicant is not entitled to protection under of the applicable grounds under the USM. Hence, it dismissed the Applicant’s appeal. Legal principles applicable to judicial review 21.The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[2]. Grounds for judicial review 22.At the hearing, after the above principles had been explained to the Applicant, he confirmed he had no complaints about errors of law, procedural unfairness and irrationality in the Decision. He had not advanced any grounds of application in his Form 86 or supporting affirmation. In the absence of particularised grounds, the Court could only focus on errors of law, procedural unfairness or irrationality in its overall scrutiny of the Board’s Decision. Conclusion 23.Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board found the Applicant’s evidence unreliable and questionable. Despite that, it also assessed his claim on the basis of the case as he asserted and some further fact found on the basis of the COI and the Applicant’s evidence. It found even if the alleged ill-treatment had been inflicted on the Applicant, it did not attain the minimum level of severity; that the injuries he suffered arose out of a personal dispute in which no government officials or state agents were involved and that the Applicant’s enemies are not state actors. It was not persuaded, even to the low standard required that the Applicant would be at risk of any threat of harm from his enemies. Applying the law applicable to non-refoulement protection to the above finding of fact, the Board came to the conclusion that the Applicant is not entitled to non-refoulement protection under any of the four applicable grounds under the USM. These are mixed finding of facts and of the law. Insofar as these are finding of the law, they are absolutely correct. Insofar as these are finding of fact, they are exclusively within the province of the Board, which the Court on a judicial review will not interfere, save when such finding involved error of law, procedural unfairness and irrationality. The Court could detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge his burden of proving his fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success. 24.For the above reasons, the Applicant’s leave application is refused. Dated the 11th day of September 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
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