YADAV DILIP PRASAD 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 be amended on the Court’s own motion by naming only the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office as the Putative Respondent, and by 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 9 July 2020 (“Form 86”), which was accompanied by a supporting Affirmation also filed on 9 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 6 July 2020 (“TCAB Decision”)[1].

2.  The Applicant sought an oral hearing of his application and one was scheduled for and attended by him on 3 September 2025.  He made some submissions, which I have set out below.

3.  I have amended the Form 86 of my own motion as above to reflect the identities of the proper Putative Respondent and Putative Interested Party.  I will use the abbreviations and definitions from the TCAB Decision unless otherwise specified herein. 

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 cousin, one SY;

(2)   The claim was assessed on the grounds of Torture Risk[2], BOR 3 Risk[3], BOR 2 Risk[4], and Persecution Risk[5] and was rejected by the Director in a decision dated 30 April 2018 (“Director’s Decision”);

(3)   The Applicant hence appealed/petitioned to the TCAB/NRCPO.  The latter held an oral hearing on 26 May 2020, and subsequently issued the TCAB Decision dated 6 July 2020 in which it decided that none of the grounds of risk were made out, rejected the Applicant’s appeal/petition, 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 to apply 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 Form 86 does not contain any grounds of judicial review.  The Affirmation merely claims that the TCAB Decision is Wednesbury unreasonable.  However, this is merely a generic, vague, and unparticularised assertion without reference to any underlying facts or matters establishing why, how, and where such complaint arises in relation to the TCAB Decision.  It is not an effective ground to support a judicial review, and cannot assist the Applicant (Re Mizan Sikder [2019] HKCA 20 at §17; Re Aziz Nasir [2019] HKCA 578 at §24; 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). There is hence no, properly particularised allegation of procedural unfairness in relation to, of any error of law in, and/or of any irrationality/failure to meet the enhanced Wednesbury test in, the TCAB Decision.

9.  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.

10.  The decision-maker set out the Applicant’s immigration and procedural history, as well as the broad nature of his claim, the four relevant types of risk, and relevant principles considered (Paragraphs 1 to 25).  The Applicant’s evidence in support of his claim was then set out and analysed in detail (Paragraphs 26 to 64).  The decision-maker concluded, with regard to the evidence, that internal relocation to numerous other parts of India (for example to other named states with other named towns and cities) was open to the Applicant and was reasonable (Paragraphs 65 to 82).  BOR 3 Risk was hence rejected even if his claims of fact were true, while Persecution Risk was rejected for lack of a Refugee Convention reason, BOR 2 Risk on the basis that the facts did not indicate a risk that he would be killed by the Government, and Torture Risk on the basis that the evidence did not establish a real risk of such.  Accordingly the claim was not made out and the Director’s Decision was confirmed (Paragraphs 83 to 93).

11.  I do not 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 justify the grant of leave.  In particular, I see no public law basis for vitiating the assessment, reasoning, and findings regarding (in relation to Persecution Risk) the lack of a Refugee Convention reason, and as to internal relocation.  The latter is a matter primarily within the province of the decision-making body, and would have inevitably led to the conclusion that there was hence no basis for affording the Applicant non-refoulment protection, including as to BOR 2 Risk (even if the decision-maker appears not to have appreciated that such may exist where the risk was posed by non-State actors and private persons) and Torture Risk (as to which I also do not see any reasonable argument that there are public law grounds on which the approach and conclusions should be vitiated).

12.  At the hearing the Applicant claimed that that he could not go back to his country as there was still a risk to his life.  He also said that he was unwell as he had health problems, in particular as he suffered from asthma attacks, and produced an asthma inhaler.  He claimed that he would return to India once he had recovered from his health problems, and when the Naxal problem was “settled”.

13.  Given the findings in and the nature of the TCAB Decision, and the nature of judicial review proceedings, I also do not see how such bare allegations assist or are relevant to the present application.

14.  I am therefore not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success, or that there is any basis for the court to intervene by judicial review.

Conclusion

15.  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