MOHAMMED KALAM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 202/2020

[2025] HKCFI 2036

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 202 OF 2020

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

Following:

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

1.   Form 86 be amended, naming the Director of Immigration as the Putative Interested Party.

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

Observations for the Applicant:

Introduction

1.  By Form 86 (“Form 86”) dated 20 January 2020, the Applicant applies for leave to apply for judicial review (“the Leave Application”) of the decision of the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (“the Board”) dated 7 January 2020 (“the Board’s Decision”) confirming the decision of the Director of Immigration (“the Director”) dated 4 December 2018 (“the Director’s Decision”), which rejected his non-refoulement claim on all applicable grounds other than risk of torture.

2.  In Form 86, the Applicant has mistakenly referred the Board as the proposed interested party, and I have corrected this on my own motion.

Background

3.  The Applicant’s personal background, his case and claim, the facts alleged by him to show that he would be harmed or killed by his creditor in India and the immigration and procedural history, etc. have been comprehensively set out in the Board’s Decision.  It is not necessary for me to reiterate them here.  For completeness’ sake, reference can be made to the Board’s Decision, the hyperlink to which is included below[1]. Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions herein.

Discussion

4.  The Applicant’s intended challenge of the Board’s Decision is not reasonably arguable with any realistic prospects of success (see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676) and leave should be refused.

5.  I have considered the Board’s Decision with rigorous examination and anxious scrutiny as required by law.  The Board was not satisfied that the Applicant had shown that there were BOR 3 Risk, BOR 2 Risk, or Persecution Risk (see §§50, 53-54, 59, 65‑66 of the Board’s Decision):

(1)  The Board observed, among others, as agreed by the Applicant, that all the creditor wanted was repayment of the loan.  He never really intended to harm or kill the Applicant.  At the hearing before the Board, the Applicant said that he was prepared to make repayment as far as he could afford.  If he was seriously harmed or killed, the loan would never be repaid.

(2)  The Applicant also managed to depart the country lawfully and safely without any trouble. 

(3)  As such, the Board could not find any substantial grounds for believing that the Applicant would suffer severe ill-treatment or serious harm upon refoulement.

(4)  The Board concluded that undoubtedly, the state could offer effective protection to the Applicant were he return home.

(5)  It was also observed that a period of 10 years had lapsed, and the Applicant’s creditor was surely getting less motivated to locate and harm or kill him.  There would therefore be no foreseeable and real risk of life upon his refoulement.

(6)  The Applicant was unlikely to establish any minimum level of serious violation of human rights, or severe or intolerable harm.  There was nothing to show the existence of any one of the Convention Reasons.  The Applicant was only pursued by an individual creditor and his associates, who had nothing to do with the state authority or a significant portion of the population of India.

6.  There is no dispute that the merits of a non-refoulement claim are matters for the primary decision-maker.  The Court should not usurp the role of the Board in assessing the evidence of the facts in question (see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524, etc.).  The Applicant has failed to state his grounds for judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015 (dated 22 December 2016) at §142), nor has he provided any materials showing that the Board committed any errors of law or there was any procedural unfairness or irrationality in its decision for the Court to intervene (see Re Zunariyah [2018] HKCA 14 at §22).

Conclusion

7.  For these reasons, I make an order that Form 86 be amended as described above and the Leave Application 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