BIKRAM v. TORTURE CLAIMS APPEAL BOARD

HCAL 364/2020

[2025] HKCFI 3481

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 364 OF 2020

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 in open court;

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

2.  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 10 March 2020, 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 24 January 2020 (“the Board’s 2^nd Decision”).

2.  The Board’s 2^nd Decision was to assess the applicant’s claim based on BOR 2 Risk[1] under the Unified Screening Mechanism (“the USM”). The Board found that there was nothing in the evidence to show that the applicant would be at BOR 2 Risk if refouled to India. Accordingly, the Board affirmed the decision of the Director of Immigration (“the Director”) dated 12 June 2017, which rejected the applicant’s claim for non-refoulement protection.

3.  The Director had previously on 9 December 2015 assessed and rejected the applicant’s claims for non-refoulement protection based on the other three applicable grounds under the USM, namely Torture Risk[2], BOR 3 Risk[3] and Persecution Risk[4], which was affirmed by the Board’s decision on 29 March 2016 (“the Board’s 1^st Decision”).

4.  Hence, the applicant’s claim for non-refoulement protection based on the other three grounds had already been disposed of and it was not necessary for the Board to re-assess the applicant’s claim on these grounds again in the Board’s 2^nd Decision.

5.  The Board’s 1^st Decision and the Board’s 2^nd Decision can be viewed in the following hyperlinks:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000364_2020_files/1st_Board's_Decision.pdf

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000364_2020_files/2nd_Board's_Decision.pdf

Amendments

6.  In form 86, the applicant named both the Board and the Immigration Department as the putative respondent and the putative interested party, when only the Board should be named as the putative respondent and only the Director should be named as the putative interested party.

7.  This court therefore 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”.

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 1^st Decision and the Board’s 2^nd Decision, which can be viewed in the hyperlinks above.

9.  In sum, the applicant claimed for non-refoulement protection because if refouled to India, a person named Atul Sharma would harm or kill him for his refusal to convert from Christianity to Hinduism.

Grounds for judicial review

10.  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).

11.  However, the applicant did not identify any ground for the intended judicial review in Form 86, nor in his supporting affidavit dated 10 March 2020. He merely asserted in his affidavit that he would like to reject and review the decision of the Board because the Board disregarded his dangerous situation.

Oral hearing

12.  The applicant requested for an oral hearing of the Leave Application and his case was heard on 30 July 2025.

13.  However, when this court asked the applicant to provide his grounds for the intended judicial review, the applicant had nothing to say, save that he asked this court to consider his problems and he could not go back to his own country.

Discussion

14.  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).

15.  Thus, despite that the applicant did not advance any valid ground for the intended judicial review, this court will still scrutinize the Board’s 2^nd Decision for any errors of law, procedural unfairness or irrationality.

16.  This court noted that the Board assessed the applicant’s BOR 2 Risk without an oral hearing. The Board’s reasons for not having an oral hearing were that there were no new materials or evidence to consider, and there was nothing which warranted an oral hearing.

17.  There is no absolute right to an oral hearing. The question of whether an oral hearing should be afforded must be decided by the adjudicator at the petition stage after considering all relevant circumstances. Ultimately, what is in issue is the question of fairness, and in the present context, high standards of fairness are involved (see St v Betty Kwan and the Director of Immigration, CACV 115/2013).

18.  Thus, it was not a must for the applicant to have an oral hearing before the Board. The Board found no new matters raised by the applicant in the documents attached to his Notice of Appeal/Petition dated 19 June 2017. In those documents, the applicant basically re-iterated his previous assertions and complaints, which had already been assessed and considered in the Board’s 1^st Decision.

19.  This court agrees with the Board that an oral hearing was not necessary. There was no procedural unfairness to the applicant when he had raised nothing new for the Board to assess and consider.

20.  Moreover, the Board did deal with the applicant’s alleged danger in the Board’s 2^nd Decision. Based on the findings of material facts in the Board’s 1^st Decision, the Board found that the perpetrator Atul Sharma was a non-state actor and the evidence adduced by the applicant did not show that there would be insufficient state protection available.

21.  The Board also found that under the Constitution of India, all religions were considered equal under the law. The police in India would have been under a duty to uphold the Constitution and to protect the applicant’s right to follow the religion of his choosing.

22.  The Board considered all the information and materials known to it and decided that:-

(a)  There were not substantial or any grounds or reason for believing that the government of India would wish to harm the applicant;

(b)  The government or authorities in India would not have any interest, adverse or otherwise, in him; and

(c)  A violation of his right to life would not be a necessary and foreseeable consequence of his refoulement.

23.  The Board concluded that there was nothing in the evidence to show that the applicant would be at BOR 2 Risk if refouled.

24.  The Board was entitled to make the above findings. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

25.  Having rigorously examined the Board’s 2^nd 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 2^nd Decision. The Board’s 2^nd Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.

26.  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

27.  For reasons aforesaid, 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