KHAN ANWAR 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 Director of Immigration as the Putative Interested Party; 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”) made on 10 March 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 3 September 2025 and made some submissions, which I have set out and dealt with below.

3.  I have amended the Form 86 of my own motion to reflect the identity of the proper Putative Interested Party.

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 his creditors;

(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 3 July 2018 (“Director’s Decision”);

(3)   The Applicant appealed/petitioned to the TCAB/NRCPO, which held a hearing (at which an interpreter was present, per Paragraphs 27(b) and 30(a) of the TCAB Decision) in relation to the Applicant’s non-refoulement claim on 4 December 2019; and

(4)   On 10 March 2020 the TCAB/NRCPO issued the TCAB Decision, in which it held that he had failed to establish any of the four grounds to claim non-refoulement protection and confirmed the Director’s Decision.

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).

8.  Given RHC O. 53 r. 4(1) and s. 21K(6) High Court Ordinance (CAP. 4A), where an Applicant applies for leave to apply for judicial review more than 3 months after the decision:

(1)   The failure to apply within 3 months constitutes “undue delay”.  To justify an extension of time in which to apply for leave, the Applicant must show “good reason” to extend time.  In deciding this, certain factors that are likely to be significant are (i) the length of the delay (ii) the explanation for the delay[6] (iii) the merits of the substantive application[7] (iv) prejudice, and (v) whether the application raises questions of general public importance;

(2)   Where the court considers that there is no good reason for extending the period, it will refuse leave to apply for judicial review.  The refusal of an extension of time is part and parcel of a refusal to grant leave to apply.  It is not the case that the court refuses the extension of time as a discrete decision and then makes no decision on the question of leave to apply for judicial review, treating this as a separate matter entirely;

(3)   If the court is satisfied that there is good reason for extending the period, it does not follow that leave to apply for judicial review will automatically be given.  While the court might grant leave, it retains a discretion to refuse to do so and the existence of a good reason for undue delay is only one facet of the question, others including sufficiency of interest and the need to satisfy the arguability test.  Leave may also be refused on the basis that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration; and

(4)   Even if leave to apply is granted, the issue of undue delay on the part of the applicant may be raised again at the substantive hearing of the judicial review application.  That is a separate consideration of whether relief should be refused on the basis that the court thinks that relief would be likely to cause substantial hardship or prejudice to the rights of another or be detrimental to good administration.  

See AW v Director of Immigration & anor.  [2016] 2 HKC 393 (CA) (at §§23 to 36), Thomas Lai [2014] 6 HKC 1 (at §§43 to 45 as also cited in AW, supra), and H v Director of Immigration (2020) 23 HKCFAR 248 at §§17-22, 36-44 citing inter alia both AW and Thomas Lai.  See also Re Hariatiningsih [2021] HKCFI 1194 at §§12-13, 16-19 citing the aforesaid, upheld in [2022] HKCA 1321.

Discussion

9.  The application was filed more than 3 months after the TCAB Decision, and just over 3 weeks out of time. I do not see any good reason to extend time for the Applicant’s application for leave to apply for judicial review.  I therefore refuse to grant such an extension of time, and I dismiss the application for leave to apply for judicial review.  This is for the following reasons.

10.  Dealing, firstly, with the merits of his application, the Form 86 and the Affirmation do not set out any grounds of judicial review in relation to the TCAB Decision.  Insofar as the Applicant asserts in the latter that he is “not satisfied with” the TCAB Decision, that does not amount to a ground of judicial review, given that it does not identify any public law error, much less one supported with requisite reference to underlying particulars (Re: Haider Khalil [2021] HKCA 223 at §16 and Akhondo Shakhil [2021] HKCA 1616 at §15 citing inter alia Re: Mizan Sikder [2019] HKCA 20).

11.  Nevertheless, given the seriousness of the issues at hand, 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 TCAB/NRCPO outlined the Applicant’s background, immigration and procedural history, and the nature of the process before it (Paragraphs 1 to 8).  It then detailed the core assertions advanced by the Applicant in support of his claim, including how such were dealt with at the hearing with the assistance of an interpreter, and the decision-maker’s various attempts to minimise any confusion as to the terminology and evidence (Paragraphs 9 to 31).  It then identified the relevant principles in relation to each of the grounds of non-refoulement relief, including as to state protection (Paragraphs 32 to 55).

13.  This was then followed by consideration of the evidence and COI, which included details of salient matters, and of opportunities given to the Applicant to comment on them. The TCAB/NRCPO concluded that no Refugee Convention reason was engaged, and that a document produced as Attachment-2 could not be relied on such that no weight would be given to such. It also did not accept, and rejected, the core assertions made by the Applicant including those in relation to the confiscation and shipment of mobile phones in the NCF, that he had incurred the alleged debts as claimed, that he had sought help in relation to from a harassment from a Market Committee instead of from the police or authorities, that he had negotiated with the Director of the DRI to release smuggled goods, that he had attended a police station to complain where he had been tortured by the police on the instructions of a creditor, and that he had gone into hiding from his creditors. It also found that there was no credible evidence adduced to show that the alleged creditors wanted to kill or harm him, and rejected his claim that one had hired a lawyer to frame the Applicant on a false charge. The decision-maker concluded that the Applicant’s core assertions were fabricated or were wholly unreliable (in particular his claim that he was a debtor hounded and ill-treated by creditors) and that the Applicant was not a credible or reliable witness.  She also found that there was no, or no reliable, evidence as to the connection of the alleged creditors with the government, the state, and/or other authorities, of any acquiescence, of any physical and/or mental suffering of the requisite severity, of an intention relevant to torture, or of government unwillingness to afford protection to the Applicant.  Ultimately she did not accept that the Applicant had established that he had a well-founded fear (Paragraphs 56 to 92).

14.  The TCAB/NRCPO accordingly found that on the evidence, the Applicant had failed to establish any of the four relevant grounds.  The Director’s Decision was hence affirmed (Paragraphs 92 to 114).

15.  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 conclusions in the TCAB Decision, and that justifies the grant of leave.  This is especially so as to the assessment, reasoning, and findings regarding the credibility, evidence, state protection, and risk of harm, which are matters primarily within the province of the decision-making body.  Nor is there any reasonably arguable public law basis to vitiate the decision-maker’s conclusions or to justify the grant of leave in relation to Torture Risk, Persecution Risk, BOR 3 Risk, and BOR 2 Risk.

16.  Given the findings in and nature of the TCAB Decision, and the nature of judicial review, I do not see that the bare and unsupported claim in the Affirmation that the Applicant’s “life is still in danger in [his] home country”… is relevant to the merits of his leave application.

17.  At the hearing before me, the Applicant sought to claim that there was confusion at the hearing before the TCAB/NRCPO as to the sums of the loans in question, and that there was no interpreter at the hearing. I reject the latter bare and unsupported allegation, as it is clear from the TCAB Decision (as I pointed out to him at the hearing) that an interpreter was present at the hearing before the TCAB/NRCPO, and as the Applicant has not adduced any, let alone any sufficiently cogent evidence (documentary or otherwise) to demonstrate to the contrary.  I also reject the submission that there was any confusion as to the sums in question, given the aforesaid and the contents of the TCAB Decision (in particular Paragraphs 10 to 22 thereof).

18.  I am therefore not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success.

19.  Secondly, there is undue delay in this case as the leave application was filed just over 3 weeks out of time.  Despite this, there was no request for an extension of time to make the application in the Form 86, and no explanation was given in the documents for the undue delay, notwithstanding the Applicant’s duty of full and frank disclosure as mentioned above.

20.  The Applicant claimed before me that he had applied for leave as soon as he had “received the letter” but, after some thought, could not tell me when he had received the TCAB Decision.  I do not see that there is sufficiently cogent and credible evidence to rebut the presumption in s. 37ZV(3) Immigration Ordinance (CAP. 115), and I therefore do not consider that I have been given an acceptable explanation for the delay.

21.  Thirdly, I do not see any question of general public importance raised by the application which is likely to be resolved by the courts in any event.  Given the lack of any reasonably arguable grounds, I also see no prejudice to the Applicant if the application were not allowed to proceed, whereas allowing it to proceed would clearly be to the detriment of public administration and would needlessly prejudice the putative Respondent.  Indeed, even if there were an acceptable explanation for the delay, given the other matters herein I would still refuse to grant leave.

Conclusion

22.  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