KALAM ABDUL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

1.  The Form 86 is amended on the Court’s own motion, naming only the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office as the Putative Respondent; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  The Applicant is a national of India.  By a Form 86 filed on 2 July 2020 (“Form 86”), which was accompanied by a supporting Affirmation also filed on 2 July 2020 (“the Affirmation”), the Applicant sought leave to apply for judicial review of a decision of the Torture Claims Appeal Board (“TCAB”)/Non-Refoulement Claims Petition Office (“NRCPO”) dated 17 June 2020 (“the TCAB Decision”)[1].  I will use the abbreviations and definitions from the TCAB Decision unless otherwise specified herein.  

2.  The Applicant sought an oral hearing of his application. He attended that scheduled for 28 August 2025, and said he had nothing to add in relation to his application.

3.  I have amended the Form 86 to reflect the identity of the proper Putative Respondent.

Background

4.  This is set out in the TCAB Decision.  While I will not repeat the contents thereof, in summary and in relation to the assessment of his claim:

(1)   The Applicant claimed non-refoulement relief on the basis that if he were sent back to India, he would be harmed or killed by Hindus in his village because he had accidentally killed one of them in 2005;

(2)   The claim was assessed on the grounds of Torture Risk[2], BOR 2 Risk[3], BOR 3 Risk[4], and Persecution Risk[5] and was rejected by the Director of Immigration (“Director”) in a decision dated 20 August 2018 (“Director’s Decision”);

(3)   The Applicant appealed/petitioned to the TCAB/NRCPO, which notified the Applicant in late October 2019 of the date on which his appeal/petition would be heard, which hearing took place on 12 December 2019 and at which the Applicant answered questions from the decision-maker via a Hindi interpreter; and

(4)   The decision-maker issued the TCAB Decision on 17 June 2020, in which it was held that the Applicant’s appeal/petition failed on all applicable grounds, and the Director’s Decision was confirmed.

Legal Principles

5.  An applicant, even one acting in person, is required to identify the grounds of judicial review clearly and succinctly in the Form 86, and to fully and frankly disclose all material facts and potential legal answers (Ho Loy & Another v Director of Environmental Protection, unrep.  HCAL 21/2015, 22 December 2016, Chow J. (as he was then) at §142; Leung Kwok Hung, unrep., HCAL 83/2012, 28 September 2013, Lam J. (as he was then) at §35; Begum Khadija [2018] HKCA 571; Khan Kamran [2020] HKCA 380).

6.  It is trite that the role of the Court in a judicial review is not to provide a further avenue of appeal, and that the Court should not usurp the role of the TCAB/NRCPO which is (and together with the Director are) the primary decision‑makers.  The assessment of evidence, COI materials, and credibility, risk of harm, state protection and viability of internal relocation are primarily within the province of the TCAB/NRCPO and the Director, which are entitled to make evaluations based on the evidence available and to decide the weight to be given to them.  While the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, 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 TCAB/NRCPO.  (Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; Nupur Mst v Director of Immigration [2018] HKCA 524; Re Kartini [2019] HKCA 1022; Re Rupinder Singh [2021] HKCA 886).

7.  In order for me to give leave for judicial review, I have to be satisfied that there is an intended ground of review which is reasonably arguable, which is one that enjoys a realistic prospect of success (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676).  As a leave application of this sort is meant to be a filtering process, I am not expected to give elaborate reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23).

Discussion

8.  The grounds mentioned in the Form 86, which have been copied almost word for word from other cases, are that “the Respondent is in breach of procedural fairness in the following parts”:

(1)   “… the Respondent had unlawfully fettered his discretion by refusing the applicant’s appeal on the grounds that they did not satisfy the requirement”; (Ground 1)

(2)   “… the Adjudicator acted in a procedurally unfair manner in dealing with Applicant’s appeal”; (Ground 2)

(3)   “…the Respondent’s decisions to refuse the Applicant’s appeal were unreasonable or irrational in the public law sense or are a result of procedural errors or unfairness”; (Ground 3) and

(4)   “… the Respondent failed to meet the greater care and duty owed to a self-represented claimant”. (Ground 4)

9.  The Form 86 and the Affirmation also contain the following allegations which, again, have been copied almost word for word from other cases:

(1)   The Applicant believes he was not given a fair opportunity to “keep forward” his submissions in an oral hearing nor was he invited to submit written submissions. The Affirmation, but not the Form 86, also said “Even if the Adjudicator decides not to have oral hearing, he should at least invite me to submit written submissions and evidence”. Both documents also complain that when the Applicant filled in the Appeal Form he “was only asked to write grounds for appeal but that will not count as an opportunity to reply to submissions made by the representatives of the [Director]”; (Complaint 1) and

(2)   The TCAB had “significantly relied on the source of news which is not officially recognized or it is simply hearsay. They have also relied on some cases which are fairly outdated considering the dramatic changes,” and “The lack of credible source of information has resulted in them making groundless speculations that it is safe for [the Applicant] to return back to [the Applicant’s] country of origin”. (Complaint 2)

10.  Grounds 1 to 4 are merely generic, vague, and unparticularised assertions using selected keywords and phrases without reference to any underlying facts or matters establishing why, how, and where each of those complaints arise in relation to the TCAB Decision. They are hence entirely inadequate, as general assertions or propositions of law without particulars are not effective grounds to support a judicial review and cannot assist an applicant (Re Mizan Sikder [2019] HKCA 20 at §17; Re Aziz Nasir [2019] HKCA 578 at §17; Re Kharsu Numan [2019] HKCA 626 at §24; Re Salim Ahmed [2020] HKCA 244 at §20; Haider Khalil [2021] HKCA 223 at §16; Akhondo Shakhil [2021] HKCA 1616 at §15).

11.  Nevertheless, given the seriousness of the issues at hand and the allegations in Complaints 1 and 2, I have considered the TCAB Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard and bearing in mind the need for a high standard of fairness.  

12.  The decision-maker set out the Applicant’s background, immigration and procedural history, the documents at and conduct of the hearing, the Applicant’s claims, an outline of conclusions reached in the Director’s Decision, and the relevant law and principles in relation to evaluating risk and credibility (Paragraphs 1 to 23).

13.  The decision-maker then set out the conduct of and events at the hearing, and the Applicant’s evidence in some detail, pursuant to which it was concluded (with reference to salient reasons) that the testimony given by the Applicant was “exceptionally poor and there was no area of his evidence not affected by serious and material credibility problems”, and that the Applicant was “not a witness of truth and no credence can be given to any of his claims, beyond his undisputed nationality”. Based on such findings, the Applicant had failed to establish his claims, a real risk that he would face any of the kinds of harm as claimed, and hence Persecution Risk, BOR 2 Risk, BOR 3 Risk, and Torture Risk. The appeal/petition hence failed on all grounds and the Director’s Decision was confirmed (Paragraphs 24 to 41)

14.  I do not, from my examination and scrutiny, see that the Applicant has any reasonably arguable case that there was procedural unfairness (bearing in mind the need for a high standard of fairness), an error of law, and/or irrationality/failure to meet the enhanced Wednesbury test that is sufficient to vitiate the TCAB Decision, and that justifies the grant of leave.  This is especially so as to the assessment, reasoning, and findings regarding the Applicant’s evidence and credibility, which are matters primarily within the province of the decision-making body.  Nor is there any public law basis to vitiate the decision-maker’s consequent conclusions regarding Persecution Risk, BOR 3 Risk, and BOR 2 Risk.

15.  As to Complaint 1 in particular, that (whether on its own or in conjunction with any of Grounds 1 to 4) also does not raise any reasonably arguable error of public law.  It was for the Applicant to establish his claims before the decision-maker. If he had further submissions to make or evidence to submit (including in response to the Director’s submissions) to the decision-maker, he could have done so at the oral hearing. It is baseless to suggest that the decision-maker had to invite him to do so before he would do the same, or that he was somehow deprived of some opportunity to do so. A fortiori when he had ample time from the Director’s Decision, and from the notification of the date of the hearing, to prepare for the hearing of his appeal, there was no indication that the Applicant complained at the hearing about these matters, and when he has not provided any specifics of how this apparently prejudiced or tainted the conduct of the hearing or the TCAB Decision, let alone in a manner sufficient to vitiate the conclusions (particularly those relating to the Applicant’s evidence and lack of credibility) reached by the TCAB/NRCPO.

16.  I also do not see any reasonably arguable ground for judicial review arising in relation to Complaint 2 (whether on its own or in conjunction with any of Grounds 1 to 4). The Applicant has not identified what source of news or cases relied on was/were alleged to be “not officially recognized”, hearsay, or outdated, or how such are sufficient to vitiate the TCAB Decision.  There was also no complaint about such at the oral hearing, and I do not see how any such a public law complaint can arise when that the decision-maker’s findings were based on the Applicant’s own evidence and lack of credibility.

Conclusion

17.  In the circumstances, I have made the orders above, including that the application for leave to apply for judicial review be dismissed.

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