Dangi Dev Kishan v. Torture Claims Appeal Board
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HCAL 1096/2023 [2026] HKCFI 5992 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1096 OF 2023 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 5 July 2023, 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 9 June 2022 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:- 2.However, this court notes that the Board’s letter enclosing the Board’s Decision was in fact sent to the applicant, care of the duty lawyer acting for him, on 9 June 2023, not 9 June 2022. Moreover, the Board’s hearings of the applicant’s case were held on 15 December 2022 and 12 January 2023 respectively. Thus, it is simply impossible for the Board’s Decision to be ready on 9 June 2022, almost half a year before the Board’s first hearing. The applicant also confirmed at the oral hearing before this court on 22 October 2026 that when he received the Board’s Decision from the Duty Lawyer Service, he was advised that he had 14 days to make an application, and he made the Leave Application shortly after he received the Board’s Decision. 3.It is therefore apparent that the date of the Board’s Decision, ie 9 June 2022, was an error. The Board’s Decision which dealt with the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 20 September 2021 (“the Director’s Decision”) ought to be dated “9 June 2023” instead of “9 June 2022”. 4.The Board rejected the applicant’s non-refoulement claim as not substantiated on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Thus, the Board confirmed the Director’s Decision, which rejected the applicant’s non-refoulement claim. Amendments 5.The applicant named “Fraser SYME Member of the Torture Claims Appeal Board” as the putative respondent and the Board as the putative interested party in Form 86, when the Board should be the putative respondent, and the Director should be the putative interested party. 6.Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and the name of the putative interested party to “Director of Immigration”. 7.As aforesaid, the Board stated the date of its decision wrongly in the Board’s Decision and the applicant stated the wrong date in Form 86 as well. Thus, the decision in respect of which relief is sought is amended to “Torture Claims Appeal Board’s decision sent to the applicant on 9 June 2023” on this court’s own motion. The applicant’s case 8.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. 9.In sum, the applicant claimed for non-refoulement protection due to two reasons. First, if he returned to India, he would be harmed or killed by his creditor Mr NS, from whom he obtained a loan of 20 Lakh Indian rupees. Although he had repaid 5 Lakh, he was unable to repay the remaining debt and Mr NS threatened to kill him. Secondly, the applicant claimed for non-refoulement protection because he had a wife in Hong Kong. The applicant claimed that his wife would be unsafe if she joined him in India, and their marriage would be destroyed if he returned to India without her. Oral hearing 10.The applicant requested for an oral hearing of the Leave Application and his case was heard on 22 October 2026. 11.When this court asked the applicant for the grounds of his intended judicial review, he merely replied that his life was at risk and he needed some more time to stay here. 12.When this court asked him what was wrong with the Board’s Decision, he simply said that he had put forward his grounds but the Board did not consider them. Grounds for judicial review 13.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). 14.The applicant did not advance any grounds for the intended judicial review in Form 86. 15.In his supporting affirmation dated 5 July 2023, the applicant only mentioned that he did not want to return to his country because his life was still in danger. 16.As aforesaid, the applicant only said that his life was at risk, he needed some more time to stay here, and the Board did not consider his grounds. Discussion 17.First of all, the applicant’s danger in his country had been duly assessed but rejected by the Board. If the applicant intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review unless there were errors of law, procedural unfairness or irrationality in the Board’s Decision. 18.His other bare assertion that the Board did not consider his grounds cannot help him either. He did not say which grounds of his were not considered by the Board. Contrary to the applicant’s accusation, this court finds that the Board had carefully considered each and every claim that he made in relation to his non-refoulement claim. 19.Thus, none of the matters that were raised in the applicant’s affirmation or at the oral hearing before this court constitutes a valid ground to challenge the Board’s Decision. 20.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). 21.Thus, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any valid ground being advanced by the applicant for the intended judicial review. 22.As aforesaid, the applicant was afforded two oral hearings before the Board. He was legally represented and was thus given the chance to present his case to the Board through his legal representative. 23.As can be seen from the Board’s Decision, the Board had assessed all the applicant’s claims carefully, and had duly considered his danger arising from the unpaid loans obtained from Mr NS, and his claims for non-refoulement protection due to his marriage in Hong Kong. 24.The Board’s findings and assessment of the applicant’s case and evidence were laid out in paragraphs 53 to 78 of the Board’s Decision, and it is not necessary for this court to repeat the same here. 25.In gist, the Board rejected the entirety of the applicant’s account in relation to the unpaid debt allegedly owed to Mr NS. Due to the numerous material inconsistencies in the applicant’s evidence, as well as his implausible evidence, providing new evidence at the Board’s hearings and his non-persuasive explanations, the Board was unable to give him the benefit of the doubt. On the credible evidence before it, the Board considered that there was no real risk of any of the proscribed forms of harm to the applicant on any of the applicable grounds under the USM from Mr NS, Mr NS’ men, supporters of the Congress Party and/or the Indian police, if the applicant was refouled to India. 26.This court finds no flaw in the Board’s reasoning for the above assessment. 27.With regards to the applicant’s claim on the basis of BOR 19[1], the Board had invited the applicant’s wife, who is a Hong Kong resident, to attend the hearing as a witness. After consideration of the applicant’s submission on BOR 19, the Board was of the view that none of the rights in BOR 19 were “absolute and non-derogable” rights. To the contrary, the court in the decisions of Pagtama[2] and in Comilang[3] had expressly decided that BOR 19 was indeed subject to the limits in section 11 of BOR[4]. Thus, the Board had not assessed separately the applicant’s claims against BOR 19 as a ground on which he could substantiate his claim for non-refoulement protection. 28.After hearing the testimony of the applicant’s wife, the Board found that her key evidence was her express desire to accompany the applicant to India, if he was removed from Hong Kong. 29.Nevertheless, the Board found that, given its findings rejecting the applicant’s claims related to the unpaid loan to Mr NS as being not credible, there was no need to assess whether the applicant’s wife accompanying him to India had made any difference to the risk he faced from Mr NS. 30.For the sake of completeness, the Board had also expressly stated in paragraph 78 of the Board’s Decision that the inescapable consequence of the applicant’s wife accompanying him to India was that there was no real risk of any harm to the applicant due to being forced to separate from her. The Board concluded that there was no real risk to the applicant due to his having a wife in Hong Kong, if he was refouled to India. 31.Thus, the Board did not consider that the applicant faced a real risk of proscribed harm due to the claimed unpaid loan and/or his marriage in Hong Kong if he was refouled to his country, and concluded that the applicant’s claims for non-refoulement protection failed on all the applicable grounds under the USM. 32.The Board did not consider availability of state protection and viability of internal relocation. However, as the applicant’s claims and the matters giving rise to his claims for non-refoulement protection were rejected in their entirety, it is therefore not necessary for the Board to consider the availability of state protection to the applicant. 33.As to internal relocation, it is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that he qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997). In other words, internal relocation only arises if the applicant has established a real risk of persecution in his home area (see Gardi v SSHD [2002] 1 WLR 2755). 34.As it is the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm, it is not necessary for the Board to consider internal relocation. 35.The finding of facts relating to a non-refoulement claim, including the assessment of evidence 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 conclusion. 36.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. 37.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 38.For reasons aforesaid, the Leave Application is dismissed. Dated the 28th 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] Article 19 of Section 8 of the Hong Kong Bill of Rights [2] Pagtama & Ors v Director of Immigration HCAL 13, 45 & 56/2014 [3] Comilang & Ors v Director of Immigration [2019] HKCFA 10 [4] The Hong Kong Bill of Rights |
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