Sunny Saran v. Torture Claims Appeal Board
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HCAL 2381/2024 [2026] HKCFI 5860 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2381 OF 2024 BETWEEN
Application for leave to apply for judicial review NOTIFICATION of the Judge’s decision (Order 53, rule 3) Following:
Order by Deputy High Court Judge Michael WONG:
Observations for the applicant: The Leave Application 1.By way of Form 86 dated and filed on 6 December 2024, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 28 November 2024 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:- 2.The Board found that the applicant was not entitled to non-refoulement protection in Hong Kong on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board refused the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 14 February 2024 and confirmed the same, which rejected the applicant’s non-refoulement claim. Amendment 3.In Form 86, the applicant named “The Torture claim appeal Board / Non-Refoulement claim petition office” as the putative respondents, when only the Board should be so named. 4.The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board and should not be named as a putative respondent at all. 5.Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”. The applicant’s case 6.It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above. 7.In sum, the applicant claimed for non-refoulement protection because if refouled to India, he would be at risk of being harmed or killed by the family of Jaspal Singh (“Jaspal”), who was the applicant’s neighbour and was killed by the applicant’s cousin in the presence of the applicant in 2018. The applicant claimed that Jaspal’s cousin was a Member of the Legislative Assembly (“MLA”). 8.The applicant claimed that he was arrested with others due to the murder of Jaspal, and that he was detained for 21 months before being granted bail. 9.Although the applicant did not claim that he feared the death penalty would be imposed on him should he be found guilty of the charges against him, the Board had considered whether the applicant did face the death penalty, as the Board was of the view that it might, in some circumstances, establish BOR 2 Risk[1] and BOR 3 Risk[2]. Disposal on paper 10.The applicant did not request for an oral hearing of the Leave Application. This court is also satisfied that the Leave Application can be disposed of based on the written materials before this court. Hence, the Leave Application is dealt with on paper. Grounds for judicial review 11.The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016). 12.The applicant did not advance any ground for the intended judicial review in Form 86, nor in his supporting affirmation dated 6 December 2024. He only stated in Form 86 and the said affirmation that he was not satisfied with the Board’s Decision. Discussion 13.First of all, the applicant’s mere comment that he was not satisfied with the Board’s Decision cannot help him. He did not state why the Board’s Decision was wrong or how the Board had erred in its consideration of his non-refoulement claim and/or his appeal/petition. 14.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 [2018] HKCA 524). 15.Thus, despite that the applicant did not advance any valid ground for the intended judicial review, this court will still scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality. 16.In assessing the appeal/petition by the applicant, the Board held two oral hearings on 2 May 2024 and 12 September 2024 respectively. The applicant was present and was thus given the chance to present his case to the Board in person. 17.This court notes that the second hearing was directed by the Board after receiving court records in relation to the applicant’s criminal cases in India. The Board determined that it was necessary to hold a further hearing for three reasons. First, the Board noticed that although one of the charges against the applicant attracted death penalty, the applicant made no explicit mention of fear in that regard in his non-refoulement claims. The Board considered that it was necessary to explore this aspect of the applicant’s claim further with the applicant. Secondly, the Board considered it necessary to discuss with the applicant the various inconsistencies between his own claims and the facts as stated in the court documents he submitted. Thirdly, the comments of the judge about the delay in the progress of the trial as at January 2020 cast some doubt on whether the trial was even proceeding. 18.Thus, the Board had duly examined the applicant’s non-refoulement claim and had dealt with his case with high standards of fairness. 19.As can be seen from the Board’s Decision, the Board gave full and detailed reasoning in rejecting the applicant’s claims. 20.The Board had laid out its consideration of the applicant’s claims and evidence in paragraphs 52 to 68 of the Board’s Decision, and it is not necessary to repeat the same here. 21.In gist, in relation to the applicant’s claimed threat of harm from the family of Jaspal, the Board found that the applicant remained in India for three and a half years after being released from prison on bail, during which time the Board was satisfied that Jaspal’s family had ample opportunity to kill or harm the applicant, but they did not do so. The Board did not accept the applicant’s claim that he had been attacked from behind by MLA’s people with a dagger or a chopper in December 2022, and considered that the applicant fabricated the incident. 22.In any event, the Board found that there was no evidence as to any threat or actual harm done to the applicant during the 6 months after the alleged attack in December 2022 before the applicant left India. Further, the applicant told the Board that he came to Hong Kong to do business, not because he was at immediate risk of harm. The Board was of the view that if the applicant had just escaped a life-threatening attack, it was not credible that he would have come to Hong Kong only six months later, on business, and then decided not to return to India just because of another verbal threat. 23.The Board was not satisfied that the applicant was at real risk of harm from the family of Jaspal, including the influential former MLA, should he return to India. 24.Furthermore, the Board had given full reasons in paragraph 62 of the Board’s Decision for its conclusion that even if the applicant were at risk of harm in his home village, he could avoid such risk by relocating to another area of India such as Mumbai or New Delhi. 25.As aforesaid, despite that the applicant did not claim he feared death penalty would be imposed on him should he be found guilty of the charges against him, the Board had taken the initiative to explore whether the applicant would face death penalty should he be found guilty of the charges against him, which might constitute a violation of BOR 2 and BOR 3. The Board had discussed the applicant’s risk in this regard in paragraphs 63 to 68 of the Board’s Decision. 26.In short, after due consideration of the available country of origin information (“COI”), and taking into account the applicant’s evidence that he had received legal advice indicating that he was not facing death penalty, and the fact that he was granted bail for a non-bailable offence, the Board was not satisfied that there was a real risk that the applicant would face any death penalty, or that he was at real risk of having death penalty imposed on him, if he returned to India. 27.Thus, the Board concluded that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the USM. 28.The finding of facts relating to a non-refoulement claim, including the assessment of evidence, COI and risk of harm, was solely within the ambit of the Board in dealing with the applicant’s appeal/petition. This court finds nothing wrong or unreasonable in the way the Board reached its decision. 29.Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision. 30.As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused. Conclusion 31.For reasons aforesaid, the Leave Application is dismissed. Dated the 21st day of October 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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