PINKI v. TORTURE CLAIMS APPEAL BOARD

HCAL 2895/2019

[2025] HKCFI 3542

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2895 OF 2019

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

	consideration of the documents only; or
	consideration of the documents and oral submissions by the applicant or counsel in open court;

1.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”.

2.  The applicant’s application to withdraw the application for leave to apply for judicial review be refused.

3.  The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated and filed on 2 October 2019, 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 26 September 2019 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL002895_2019_files/the_Board's_Decision.pdf

2.  The Board found that the applicant failed to substantiate her claim for non-refoulement protection on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board affirmed the decision of the Director of Immigration (“the Director”) dated 14 June 2019 (“the Director’s Decision”), which rejected the applicant’s non-refoulement claim.

Amendment

3.  The applicant named “Torture Claims Appeal Board / Non-refoulement Claims Petition Office” as the putative respondent in Form 86, when only the Board should be named as the putative respondent.

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, on this court’s own motion, the name of the putative respondent is amended 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, she would be at risk of harm or death from a policeman named Sonu. The applicant and Sonu were engaged, but their engagement was called off because the applicant’s family could not afford the dowry items that Sonu’s family demanded, and Sonu threatened to kill the applicant if she married another man.

Withdrawal of the Leave Application

8.  The applicant requested for an oral hearing of the Leave Application, but before a hearing is fixed, the Director sent a letter dated 18 October 2024 to inform this court that the applicant had written a letter dated 23 September 2024 to withdraw her judicial review application.

9.  As stated in the applicant’s said letter, the reason she gave for the withdrawal application was that she wanted to go back to her home country as soon as possible, her problems in her home country were solved and it was safe for her to go back home.

10.  There is no evidence to show that the applicant made the withdrawal application other than out of her own volition. With the withdrawal application, it is clear that the applicant no longer wishes to proceed with the Leave Application or any oral hearing for the Leave Application. It is therefore not necessary for this court to afford her any oral hearing for the Leave Application even though she had requested one before.

11.  However, the Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 that:-

“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

12.  Thus, it is right for this court to deal with the Leave Application instead of leaving the action at large by granting leave to the applicant to withdraw the Leave Application. The applicant’s application to withdraw the Leave Application is therefore refused, and this court will proceed to consider the merits of the Leave Application.

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 annexed a document to her Form 86 with the title “Grounds on which Relief is sought”. Many other applicants in similar applications had in fact used the contents of this document and it is like a template for them.

15.  In her supporting affirmation dated 12 September 2019, the applicant stated that she was currently not in possession of any of her documents and she would be in a position to submit the rest of the documents upon her release from detention.

16.  She also sent a document with the title “Written Submission” to this court on 7 November 2022, the contents of which were again copied from a template used by many other applicants in similar applications.

Discussion

17.  First of all, some of the grounds stated in the documents titled “Grounds on which Relief is sought” and “Written Submission” were directed at the Director. As the Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali [2018] HKCA 549), the Director’s Decision cannot be the subject matter of the Leave Application. This court will therefore consider only those grounds directed at the Board in respect of the Board’s Decision.

18.  The grounds that were advanced against the Board’s Decision were all very general and without any particulars related to the applicant’s own case. They only contained “keys words” such as the Board was procedurally unfair, the Board’s Decision was unreasonable and irrational, the Board relied on country of origin information (“COI”) that were not officially recognized, or were simply hearsay or fairly outdated, etc.

19.  The Court of Appeal has repeatedly held that general assertions without particulars cannot be effective grounds to support a judicial review (see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; and Re Kharsu Numan [2019] HKCA 626). Further, as held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”.

20.  Thus, none of the grounds that were contained in the documents titled “Grounds on which Relief is sought” and “Written Submission” could establish any valid ground to challenge the Board’s Decision when they are so vague and general without any requisite particulars related to the applicant’s case.

21.  The applicant seemed to suggest that she had additional documents to submit but she could not do so because of her detention.

22.  If the applicant intended to submit new evidence to this court for consideration of her non-refoulement claim, it was not permissible. As held in Trinh Thuy Huyen v Torture Claims Appeal Board [2024] HKCA 1090, the Board had no duty to make investigation into any matter without the applicant raising it and it should not be considered by this court at this stage.

23.  Further, as held in Nupur Mst v Director of Immigration [2018] HKCA 524, due to the difference in the role of the court in a judicial review and the role of the primary decision-makers, an applicant cannot rely on materials which have not been produced before the Board or the Director to contend that the latter erred in not taking those into account unless the decision-makers have a positive duty to elicit such materials on their own volition.

24.  Thus, the applicant’s assertion that she had further documents to support her claim cannot assist her in the Leave Application.

25.  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, supra).

26.  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.

27.  In assessing the applicant’s appeal, the Board held an oral hearing on 4 September 2019. After due consideration of the evidence and the oral testimony of the applicant, the Board concluded that the applicant had not established that she would face any of the proscribed forms of harm if refouled.

28.  The Board found that Sonu’s supposed rank and attachment in Tarn Taran as a policeman was insufficient to show that he was able to wield the power and/or authority to harm the applicant as alleged. There was no evidence to show that the state or government of India was unwilling or unable to afford protection to the applicant.

29.  As the Board found that the applicant would not face a real risk of persecution, the Board did not consider it necessary to consider the viability of internal relocation. The Board was correct to come to this conclusion by adopting the well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that she 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).

30.  However, the Board had, for the sake of completeness, assessed the viability of internal relocation for the applicant and concluded that it would not be unduly harsh for the applicant to relocate to any state in India other than the Punjab.

31.  The assessment of evidence, COI and risk of harm was primarily within the realm of the Board. The Board was entitled to reach its decision. The applicant’s alleged danger in her home country had indeed been duly assessed by the Board. This court finds nothing wrong or unreasonable in the way the Board reached its decision.

32.  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.

33.  In fact, in view of the applicant’s latest confirmation that it was safe for her to return to her home country, there is absolutely no ground for her to make any non-refoulement claim and there is no prospect of success in the applicant’s intended application for judicial review at all.

34.  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 intended judicial review has no realistic prospects of success at all, and hence the Leave Application must be dismissed.

Conclusion

35.  For reasons aforesaid, the application for leave to withdraw the Leave Application is refused and the Leave Application is 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