AHMED SHAIKH ASHRAFUDDIN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1044/2020

[2025] HKCFI 4648

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1044 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;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  By a Form 86 filed on 29 May 2020 (“Form 86”), the Applicant sought leave for judicial review of the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”) made on 21 May 2020 (“the Board’s Decision”). A copy of the Board’s Decision can be viewed by the following hyperlink[1].

2.  The Board’s Decision was made pursuant to a petition/appeal from a decision of the Director of Immigration (“DI”) dated 7 December 2018.  The Board and the DI are respectively the putative respondent and putative interested party to this application. 

3.  The Applicant is an Indian national.  His non-refoulement claim was based on the fear of being harmed or killed by a money lender because he could not repay a loan borrowed from him.  The money lender was said to be a member of Trinamool Congress.

4.  After an oral hearing, the Board found the dispute between the Applicant and the money lender a private dispute; there was no evidence that the ill-treatment by the money lender on the Applicant, if any, had attained the requisite severity.  The Applicant’s case fell short of the required level of a genuine and substantial risk of torture or violation of fundamental human rights under the Hong Kong Bill of Rights should he return to India.  Neither was the Applicant under any well-founded fear of being persecuted so that he had to stay outside India.  The Board also found available State protection to negate the risk to the Applicant (even if there would be any) and reasonable internal relocation alternative. 

5.  In the supporting affirmation of this leave application, the Applicant set out a few grounds on which relief is sought.  The Applicant did not seek to supplement those grounds in the oral hearing of this leave application and just kept on saying his problem in India has not been solved.  The grounds in the affirmation are summarized as follows and will not be dealt with by their order in the affirmation because of the great extent of overlapping. 

6.  First, it was said the Board failed to meet “greater care and duty” owed to a self‑represented claimant.  However, the Applicant was actually represented by a lawyer during the Board’s hearing.

7.  Secondly, it was said the Board had relied on country of origin information (“COI”) which was not officially recognised or simply hearsay.  The Applicant has not given any particulars as to which item(s) of COI was outdated.  It can be noted from the Board’s decision that the Board made reference to the COI supplied by both the Applicant’s and the DI’s legal representatives.  I am unable to see how this ground can be made out.  After all, the relevance of COI in this case is whether the police in India would be able to provide State protection if the money lender’s threat to the Applicant would really constitute risk of torture and violation of fundamental rights.  The Board’s finding was that the risk from the money lender was not genuine and substantial. 

8.  The Applicant also vaguely suggested the Board’s Decision to be irrational and the product of “unlawful fettering of discretion”, that there was no regard of the “life and limb in jeopardy” principle and that the Board was procedurally unfair.  There was no elaboration as to how those grounds applied to the case and I find no substance in them.  I do not intend to deal with each of those vague assertions.

9.  It has been reiterated time and again that the primary responsibility for the factual assessment of whether any risk of ill-treatment exists lies with the Board.  In the absence of any errors of law, procedural unfairness or irrationality, the Court would not reopen the Board’s findings or make a determination on the case afresh.  The role of the Court in a judicial review is not to provide a further avenue of appeal (see Re Lakhwinder Singh [2018] HKCA 246).

10.  I have reviewed the Board’s Decision vigorously, but do not find the proposed judicial review reasonably arguable.  The leave application is thus 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