JATINDER KUMAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1421/2020

[2025] HKCFI 5572

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1421 of 2020

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

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

1.  The Form 86 be amended on the court’s own motion.

2.  Leave is granted to the applicant to issue a judicial review application against the Board’s Decision.

3.  The applicant shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.

Observations for the Applicant:

Introduction

1.  By a “Notice of application to apply for leave for judicial review” in the prescribed Form 86 filed on 8 July 2020, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 3 July 2020 (“Board’s Decision”) dismissing the applicant's appeal against the Director of Immigration (“Director”) dated 23 July 2018 (“Director’s Decision”) rejecting the applicant's non-refWoulement claim on all applicable grounds except the torture risk ground under Part VIIC of the Immigration Ordinance as the said ground had been rejected by the Director on 8 November 2013. The Board’s Decision can be viewed at the following hyperlink: -

  https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001421_2020_files/the_Board's_Decision.pdf

2.  In the Form 86, the applicant named the Board and Director as the proposed respondents as well as the interested parties. As the Board should have been the proper respondent, the Form 86 shall be amended accordingly on the court’s own motion.

3.  The basis of the applicant’s claim was that, if refouled to India, he would be harmed or killed by his girlfriend’s brother who objected to the planned marriage between the applicant and his girlfriend. The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them. Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

4.  As no request for a hearing was made, this court will determine the Leave Application without a hearing: O.53, r.3 (3) of the Rules of the High Court.

Discussion

5.  The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[1] It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

6.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[2], and further to make full and frank disclosure of all material facts to be verified by an affidavit. The Form 86 and the supporting affirmation provided none at all.

7.  As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality.[3] In the present case, the Board accepted the core aspects of the applicant’s claims about the past events in India, including that he was threatened with death by the girlfriend’s brother who blamed the applicant for the death of the girlfriend. Hence, the Board found that there was a small risk that the applicant would suffer harm that would constitute CIDTP if he returned to his home area. However, the Board assessed and concluded that there were no substantial grounds to believe that he would face a real risk of being subjected to CIDTP and other risks as the Board was satisfied that state protection was reasonably available and internal relocation was also reasonably viable. The Board therefore dismissed the applicant’s appeal. These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

8.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is not satisfied that Board’s Decision meets the required high standards of fairness as it seems reasonably arguable that it is erroneous in law, tainted by procedural unfairness and unreasonable in relation to the Board’s findings on state protection and internal relocation.

State protection and internal relocation

9.  The Board’s conclusion that state protection and internal relocation would be available was reached without specifically referred to or cited any country of origin information (“COI”).

10.  A high standard of fairness requires a Board to demonstrate that it has properly and independently assessed COI: A, B, C, D and E v Torture Claims Appeal Board, [2024] HKCA 471 at [33] – [34] when assessing the availability of state protection and internal relocation. In the present case, the Board failed to cite or refer to, let alone assess, any COI. Thus, there is no objective and reliable evidentiary basis for the Board’s findings as to police protection and internal relocation.

11.  In assessing sufficiency of state protection, the Board would have been required to apply “anxious scrutiny” by adopting a fair procedure in reaching a rational decision[4] by taking into account the applicant’s core part of his claim that included the blaming of the brother of the deceased’s girlfriend for her death by suicide, which account the Board had accepted. This would have entailed the Board’s careful weighing up of all relevant COI materials, particularly those adverse to the availability of state protection[5]. In the present case, there is simply no consideration of any specific COI.

12.  Further, when assessing the viability of internal relocation, a Board is required to take into consideration the personal circumstances specific to an applicant in making a holistic assessment when assessing whether it would be unduly harsh for the applicant to relocate elsewhere: Md Nazir Ahmed Sarkar v Torture Claims Appeal Board [2021] 5 HKC 237 at [73]. In the present case, the Board only referred to the applicant as a resourceful person with the skills and ability to successfully relocate to a new city (Board’s Decision at [59]). However, according to the evidence before the Board, the applicant only received 14 years of education and the only working experience he had before leaving India was his work as a dancer for 2 years (Board’s Decision at [5]). The Board did not seem to have specifically considered these particular circumstances of the applicant in reaching its conclusion.

13.  For the above reasons, it seems at least reasonably arguable that the Board’s Decision is wrong at law, tainted by procedural unfairness and that it does not meet the required high standards of fairness.

Conclusion

14.  In the premises, and for all the given reasons, I am of the view that the applicant’s Leave Application is reasonably arguable on those grounds stated above, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

15.  Accordingly, I grant leave to the applicant to apply for judicial review of the Board’s decision, and direct that he shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.

Order

16.  The Form 86 be amended on the court’s own motion.

17.  Leave is granted to the applicant to issue a judicial review application against the Board’s Decision.

18.  The applicant shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.

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