JASVIR CHAND v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE [Decision on Leave Application]

bjbj HCAL 1224/2020 [2025] HKCFI 4229 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1224 of 2020 BETWEEN Jasvir Chand Applicant and Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent Director of Immigration Putative Interested Party Application for Leave to Apply for Judicial Review NOTIFICATION of the Judge s decision (Ord. 53 r. 3) Following; ( consideration of documents only; or consideration of documents and Applicant being present in open court; Order by Deputy High Court Judge K.W. Lung: Leave to apply for Judicial Review be refused. Observations for the Applicant: THE APPLICATION The applicant applies for leave to apply for judicial review of the Decision dated 9 June 2020 of the Torture Claims Appeal Board ( the Board s Decision ), dismissing the appeal against the Director s Decision as described below. The applicant asked for a hearing. He appeared before the Court on 22 August 2025. The applicant The applicant is a national of India. He is an illegal immigrant, having entered Hong Kong as a visitor on 1 April 2015, but overstayed since 16 April 2015. He surrendered to the Immigration Department on 21 April 2015 where he lodged a non-refoulement claim on the basis that, if refouled, he will be harmed or killed by 2 creditors and/or their associates. He claimed that he was under a warrant of arrest and he feared that he may be assaulted and tortured if he returns to India. According to the applicant, he was indebted to his creditors because of failure in businesses and he had taken money from the businesses. His creditors and police were looking for him. Details of his claim are set out in the Board s Decision. See hyperlink HYPERLINK "https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001224_2020_files/the_Board's_Decision.pdf" https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001224_2020_files/the_Board's_Decision.pdf . The Director s Decision The Director considered the applicant s claim in relation to the following risks: risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, ( the Ordinance Torture risk ); risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 ( HKBOR BOR 2 risk ); risk of torture or cruel, inhuman or degrading treatment or punishment ( CIDTP ) under Article 3 of Section 8 of the HKBOR ( BOR 3 risk ); and risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol ( Refugee Convention Persecution risk ). By way of Notice of Decision dated 30 April 2018 ( the Director s Decision ), the Director dismissed the applicant s claim because it was unsubstantiated. Besides, state protection is available and internal relocation is viable, which will mitigate or neutralize the applicable risks. The Board s Decision The applicant appealed the Director s Decision to the Board. On 2 August 2019, the Board conducted an oral hearing for his appeal. He had given oral evidence and answered the Board s questions. Having considered the evidence before it, the Board made the following findings, dismissed his appeal and confirmed the Director Decision. The Board found his evidence incredible because his answers to the Board s questions were not genuine answers to provide a reasonably detailed and straightforward account of his real life experiences. [116]-[136] His evidence was bare assertions, which the Board found implausible. [137]-[140] The Board finally found that not even the centre-piece of his claim could be regarded as reliable. [147] Application for leave to apply for judicial review of the Board s Decision The applicant has filed Form 86 dated 18 June 2020 for leave to apply for judicial review of the Board s Decision. In his affirmation in support of his application, the applicant did not raise any specific reason to challenge the Board s Decision. DISCUSSION The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board s Decision on the applicant s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, 40 and Nupur Mst v Director of Immigration [2018] HKCA 524, 14 (1). The Court will bear in mind that the Board s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that he did not consider that the Board s Decision was wrong. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held: 13. (1) Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board s Decision. DISPOSITION I refuse to grant leave to the applicant to apply for judicial review of the Board s Decision. Accordingly, I dismiss his application. Dated the 26th day of September 2025 (Klein Tse) for Registrar, High Court 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 Notes for the Applicant: If leave has been granted, the Applicant or the Applicant s solicitors must: a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). Sent to the Applicant on 26/9/2025 Jasvir Chand Applicant s ref. no: Nil. Sent to the Putative Respondent / the Putative Respondent s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties solicitors on 26/9/2025 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent s ref. no.: USM 11581/18/5/166/IN2289 Director of Immigration Putative Interested Party s ref. no.: QA T/C 931/18 (formerly RBCZ/12883/15) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2) Form CALL-1 PAGE \* MERGEFORMAT WIWIWIWI; yt)m yt)m yt)m yt)m yt)m yt)m yt)m j`WQHW>W>W gdpu gdpu gdpu gdpu gdA|7 hQ;4 gdpu gdpu gdpu gdpu |r_|RARARARAR gd:| yt_\ ytNT gd:| gd:| gdNT gdNT r[H0 hA|7 ytNT w4wf gd:| gd:| gd:| gd:| gd:| yt)m yt)m yt)m yt)m yt)m yt)m yt)m yt_\ ytNT ytNT [Content_Types].xml _rels/.rels theme/theme/themeManager.xml K Y, sQ}# theme/theme/theme1.xml $O}) Xp90 +PHI| PP yu 9xu5 fs+W VF7H q=. 8}d- qyI@ j!Q_ jyV` |PZ+ T ""p < 4V O&x$ A8>v ;EUC n 8r *~P(5 .}x E /,EE\} theme/theme/_rels/themeManager.xml.rels 5 6?$Q K(M&$R(.1 [Content_Types].xmlPK _rels/.relsPK theme/theme/themeManager.xmlPK theme/theme/theme1.xmlPK theme/theme/_rels/themeManager.xml.relsPK <?xml version="1.0" encoding="UTF-8" standalone="yes"?> <a:clrMap xmlns:a="http://schemas.openxmlformats.org/drawingml/2006/main" bg1="lt1" tx1="dk1" bg2="lt2" tx2="dk2" accent1="accent1" accent2="accent2" accent3="accent3" accent4="accent4" accent5="accent5" accent6="accent6" hlink="hlink" folHlink="folHlink"/> >c B b Bo b Bo V?@k F?@k V?@k Normal.dotm Windows User Microsoft Office Word Title _PID_HLINKS <?xml version="1.0" encoding="UTF-8" standalone="no"?><b:Sources xmlns:b="http://schemas.openxmlformats.org/officeDocument/2006/bibliography" xmlns="http://schemas.openxmlformats.org/officeDocument/2006/bibliography" SelectedStyle="\APASixthEditionOfficeOnline.xsl" StyleName="APA" Version="6"></b:Sources> <?xml version="1.0" encoding="UTF-8" standalone="no"?> <ds:datastoreItem ds:itemID="{3E0319DD-6391-4A4E-9E68-B5E1178DCFDB}" xmlns:ds="http://schemas.openxmlformats.org/officeDocument/2006/customXml"><ds:schemaRefs><ds:schemaRef ds:uri="http://schemas.openxmlformats.org/officeDocument/2006/bibliography"/></ds:schemaRefs></ds:datastoreItem> Microsoft Word 97-2003 Document MSWordDoc Word.Document.8