MANI REDDIYAR SELVARAJU v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 607/2020

[2025] HKCFI 2979

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 607 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, naming the “Torture Claims Appeal Board/Non-Refoulement Claims Petition Office” as the Putative Respondent and naming the Director of Immigration as the Putative Interested Party; and

2.   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 dated and filed on 14 April 2020 (“Form 86”), accompanied by a supporting affirmation also dated and filed on 14 April 2020 (“the Affirmation”), the Applicant sought leave to commence a judicial review of a document being the decision of the Torture Claims Appeal Board (“TCAB”)/Non-Refoulement Claims Petition Office (“NRCPO”) made on 9 April 2020 (“The TCAB Decision”).[1]

2.  I have therefore amended the Form 86 of my own motion as set out above.

Background

3.  The TCAB Decision sets out the Applicant’s background and case as to his claim for non-refoulement relief, and the immigration and procedural history leading up to the TCAB Decision (Paragraphs 1 to 15). I will not repeat them but, in essence and for present purposes:

a.  The Applicant’s claim for non-refoulement relief in relation to the present proceedings is premised on Torture Risk[2], BOR 2 Risk[3], BOR 3 Risk[4], and Persecution Risk[5], and stems from the apparent risk that he will be harmed[6] or killed by his neighbour Muthulingam (“Linga”) and his brother Thanaraj Mani Reddiyar (“T”) due to a dispute over some land (“Land”); and

b.  The Applicant’s claim for non-refoulement was originally made by his written representation (“Written Representation”). The Applicant also submitted a Non-Refoulement Claim Form (“NCF”) and attended an interview on 30 November 2017 (“Interview”) a record of which was generated on the same day (“Interview Record”). It was assessed on the above grounds, and rejected, by a decision of the Director of Immigration (“the Director”) dated 11 December 2017 (“the Director’s Decision”).

c.  After the Applicant filed a Notice of Appeal/Petition (“Notice of Appeal”), the TCAB/NRCPO held an oral hearing attended by the Applicant on 16 January 2020, at which he appeared with the benefit of interpretation, gave evidence under oath, and adopted the information contained in the Written Representation, the NCF, the Interview Record, and the Notice of Appeal as evidence in support of his case (Paragraph 7), confirmed he was fit to give evidence, and did so as summarised by the TCAB/NRCPO (Paragraph 14).

4.  No grounds for judicial review are set out in the Form 86 or the Affirmation.

5.  The Applicant requested, and appeared before me, at an oral hearing of his leave application. He said that his problem had not been solved yet, but he expected it to be solved within 4-5 months and that at the beginning of next year he could go back as there wouldn’t be any problem. I will deal with such claims below.

Legal Principles

6.  An applicant, even one acting in person, is required to identify the grounds of judicial review clearly and succinctly in the Form 86 (Ho Loy & Another v Director of Environmental Protection, (HCAL 21/2015, 22 December 2016) per Chow J. (as he was then) at §142).

7.  It is trite that judicial review is not 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: see 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.

8.  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] HKCA14, at §23).

Discussion

9.  As the Applicant has not identified or set out any grounds of judicial review, there is hence no allegation of any procedural unfairness in relation to, and/or of any error of law in, and/or any irrationality/failure to meet the enhanced Wednesbury test in, the TCAB Decision.

10.  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.

11.  Further to my summary of the TCAB Decision above, I note that the TCAB Decision set out, in some detail, the basis of the Applicant’s claim prior to the oral hearing as advanced via the Written Representation, the NCF, the Interview, and the Notice of Appeal (Paragraphs 10 to 13) before setting out, again in some detail, the evidence which he gave at the oral hearing (Paragraph 14).

12.  The TCAB/NRCPO then set out the (correct) approach that it said it would apply in analysing the Applicant’s claim, including in relation to the burden and standard of proof, and the need for a high standard of fairness (Paragraph 16).

13.  This was followed at Paragraphs 17 to 18 by an analysis and assessment of the Applicant’s credibility, with the TCAB/NRCPO observing that there were aspects of his account that lacked detail or were inconsistent with his previous statements, COI, and that some defied logic and/or were implausible. I consider that it gave adequate reasons for such views in relation to core aspects of the Applicant’s claim. As a result of this analysis:

a.  The TCAB/NRCPO only found and accepted certain limited aspects of the Applicant’s account in assessing his claim for non-refoulement, being those relating to the existence of the Applicant’s family (including T), his employment and travel history, that he was injured in 2013, and was still in contact with his wife; and

b.  The TCAB/NRCPO therefore did not accept the Applicant’s claims that he owned the Land, or of the dealings with and disputes (including threats, harassment, and incidents resulting from such allegedly involving Linga, T, and other neighbours) concerning the Land, including that the reason for his 2013 injuries was that he was attacked by T and/or his neighbours relating to a dispute over the land, and that T and Linga were rich and that T was powerful due to his wife’s election (see in particular Paragraphs 17b to 17e and 28).

14.  This was followed by a section on BOR 2 Risk and BOR 3 Risk, including references to the relevant law and legal approach to be applied, the standard of proof, issues of state protection, and internal relocation (Paragraphs 19 to 26). The TCAB/NRCPO then held, as it was entitled to given its earlier factual findings, that BOR 2 Risk and BOR 3 Risk had not been established (Paragraphs 27 to 28). While it did not need to, it also found that the same applied even if it were to accept portions of the Applicant’s own case (Paragraph 28b), that state protection was available (29 to 33), and that internal relocation was a viable option (Paragraphs 34 to 37), in both cases having regard to having relevant COI.

15.  The TCAB/NRCPO then went on to address Torture Risk and Persecution Risk in a similar manner, namely by setting out the relevant law in relation to each and finding, in view of what it had said previously (and hence as it was entitled to), that each was not established with regard to the relevant factors (Paragraphs 38 to 43, and 44 to 48 respectively). Accordingly, the Applicant’s claim was dismissed and the Director’s Decision was confirmed (Paragraph 49).

16.  I do not, from my aforesaid examination and scrutiny, see that the Applicant has any reasonably arguable case of procedural unfairness (bearing in mind the need for a high standard of fairness), error of law, and/or irrationality/failure to meet the enhanced Wednesbury test in relation to the TCAB Decision. This is especially so as to the assessment, reasoning, and findings rejecting the Applicant’s evidence underlying his claim, and consequently the risk of harm, Torture Risk, Persecution Risk, BOR 3 Risk, and BOR 2 Risk, which are all matters primarily within the province of the TCAB/NRCPO. Moreover, the TCAB/NRCPO gave adequate reasons for the conclusions that it had reached. There is hence no basis to interfere with the TCAB/NRCPO’s findings of fact on matters which are primarily within its province.

17.  I do not see that the Applicant’s application for leave is assisted by his vague and unsubstantiated allegations in the Affirmation, or those which he mentioned at the oral hearing. Furthermore, given the TCAB/NRCPO Decision and the aforesaid analysis, I do not see how they are relevant to the issues before me[7]. I hence reject them.

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

Conclusion

19.  In the circumstances, I have ordered that the Form 86 be amended as described above, and 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