Yadav Sachin v. Torture Claims Appeal Board
|
HCAL 2387/2024 [2026] HKCFI 5862 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2387 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’s claims for non-refoulement protection in Hong Kong were not made out on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board confirmed the decision of the Director of Immigration (“the Director”) dated 15 April 2024, 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 Shivkumar due to a land dispute. The applicant claimed that Shivkumar once shot at him but missed, and pointed his gun at him to threaten him more than once. Shivkumar was the village head and wanted to buy the applicant’s mother’s land, but the applicant and his mother did not agree. 8.The applicant also claimed that the dispute was political, as Shivkumar was with the Bharatiya Janata Party (“BJP”), and the applicant was with the Samajwadi Party (“SJP”). Disposal on paper 9.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 10.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). 11.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 12.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. 13.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). 14.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. 15.In assessing the appeal/petition by the applicant, the Board held an oral hearing on 17 July 2024. The applicant was present and was thus given the chance to present his case to the Board in person. 16.As can be seen from the Board’s Decision, the Board gave full and detailed reasoning in rejecting the applicant’s claims. 17.The Board had laid out its consideration of the applicant’s claims and evidence in paragraphs 80 to 94 of the Board’s Decision, and it is not necessary to repeat the same here. 18.In gist, on the basis of consistent evidence, the Board accepted the basic facts of the applicant’s case, including he had a dispute with Shivkumar, his village head, over a property his family owned and which Shivkumar wanted to acquire. The Board also accepted that Shivkumar was a supporter of BJP and the applicant supported SJP, and there might be some dispute arising out of that. Further, the Board accepted that Shivkumar had filed a civil case in respect of the ownership of the land, and that the applicant relocated to Mumbai with his mother. Although the applicant claimed that he had met a relative of Shivkumar in Mumbai, the applicant and his family were not harmed there. 19.In relation to the applicant’s claim about what happened in Mumbai, the Board did not accept that the applicant and/or his family would be denied protection if they were to approach the police in Mumbai. They were outside their locality and even if Shivkumar had some influence in his local area, there was nothing to suggest that Shivkumar would have the same level of influence in a large city such as Mumbai. 20.In assessing the applicant’s case against all the applicable grounds under the USM, the Board found that Shivkumar and his associates who sought to possess the applicant’s family land were non-state actors. The applicant’s fear of Shivkumar was not for any of the RC[1]reasons. The Board also found that in all the circumstances, the applicant had failed to show that the alleged ill-treatment he would face would attain a minimum level of severity. 21.The Board had gone through country of origin information (“COI”) in paragraphs 77 to 78 of the Board’s Decision and concluded that there were avenues for complaining about inaction by the local police which were open to the applicant. 22.Furthermore, having considered the circumstances of the applicant and COI, the Board considered that internal relocation to Mumbai upon his return to India was a viable option for the applicant (see paragraphs 89 to 94 of the Board’s Decision). 23.Thus, the Board concluded that the applicant’s claims for non-refoulement protection were not made out on all the applicable grounds under the USM. 24.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. 25.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. 26.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 27.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
Form CALL-1 [1] The non-refoulement principle under Article 33 of the 1951 Convention relating to Status of Refugees. |
Summaries and metadata are generated from the judgment. Report an error
Cases cited in this judgment