BALAKRISHNAN MAHESWARAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 606/2020

[2025] HKCFI 3000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 606 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 citizen 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 judicial review as regards a decision of the Torture Claims Appeal Board(“TCAB”)/Non-Refoulement Claims Petition Office (“NRCPO”) dated 3 April 2020 (“the TCAB Decision”)[1].

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

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

Background

4.  The salient portions of the Applicant’s background and case as to the incidents underlying his claim for non-refoulement relief, and the immigration and procedural history leading up to the TCAB Decision, are set out in the TCAB Decision (Paragraphs 1 to 15, 26). I will not repeat them but, in essence and for present purposes:

a.  The Applicant’s claim for non-refoulement protection on the grounds of Torture Risk[2], BOR 2 Risk[3], BOR 3 Risk[4], and Persecution Risk[5] stems from the fear that he will be harmed or killed by:

i.   J.K. Ritheesh (“Ritheesh”), an actor and MP, and his family due to the Applicant having facilitated secret meetings and marriage between the Applicant’s friend on one hand, and Ritheesh’s sister on the other; and

ii.  A male farmer (“the Farmer”) who had two sons, both of whom were killed in a traffic accident involving the Applicant;

b.  Such claims for non-refoulement protection were rejected by the Director of Immigration (“the Director”) in a decision dated 1 June 2018 (“Director’s Decision”). At an initial hearing before the TCAB/NRCPO on 16 January 2019, a prior adjudicator of the TCAB/NRCPO had documents before it as identified in the TCAB Decision and the Applicant gave evidence to a prior adjudicator with the assistance of a Tamil interpreter;

c.  As the prior adjudicator was unable to finalise the case, the matter was reallocated to the adjudicator, who informed the Applicant that a new hearing would be arranged to clarify matters and allow him to raise any developments and submit new information since the initial hearing. The new hearing took place on 19 December 2019 and the Applicant again gave evidence with the assistance of an interpreter; and

d.  The adjudicator had listened to the recording of the initial hearing and treated the evidence given by the Applicant at that stage as the starting point.

5.  The Applicant requested, and appeared before me, at an oral hearing of his leave application. He said he thought his problem would be solved next year and that he wished to stay here for another 5-6 months. I address this 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 a decision of the TCAB/NRCPO 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 no allegation of any 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. However, 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.  As I have mentioned, the TCAB Decision outlines the Applicant’s procedural history of the matter, the factual bases of the Applicant’s claim, and the grounds relied on (Paragraphs 1 to 15). There is then a discussion of the relevant approach to be applied to such in relation to the burden and standard of proof, and how to assess credibility in establishing the facts, which the TCAB/NRCPO said it applied (Paragraphs 12 to 24).

11.  The next section concerns the findings made by the TCAB/NRCPO and reasons for such. Importantly, the conclusion was reached that even if the facts were accepted as asserted by the Applicant, the Applicant faced no risk of serious harm in India as either no risk existed, or as safe and reasonable internal relocation was available (Paragraphs 25). The TCAB/NRCPO then set out its reasons and analyses giving rise to this conclusion, and in doing so referred to the relevant evidence before it relating in particular to Ritheesh (who had died by the time of the hearing) and his family on the one hand, and in relation to the Farmer on the other, and as to the nature and extent of the threat allegedly posed by each of them (Paragraphs 26 to 35).

12.  In light of the above the TCAB/NRCPO concluded, as it was entitled to, that there was no Torture Risk, Persecution Risk, BOR 2 Risk, or BOR 3 Risk, that the appeal failed, and affirmed the Director’s Decision (Paragraphs 36 to 39).

13.  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 regarding the risk of harm, viability of internal relocation, and Torture Risk, Persecution Risk, BOR 3 Risk, BOR 2 Risk, which are all matters primarily within the province of the decision-making body. Moreover, the TCAB/NRCPO gave adequate reasons for the conclusions it reached. There is hence no basis to interfere with such findings of fact on matters which are primarily within the province of the decision-making body.

14.  Given the TCAB/NRCPO Decision and the aforesaid analysis, I do not see that the Applicant’s application for leave is assisted by his vague and unsubstantiated allegations in the Affirmation that he “have still my country have problem the same problem that’s why I go back this time no safe my life”, or those which he mentioned at the oral hearing, and I do not see how they are relevant to the issues before me. I hence reject them.

15.  I am not therefore not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success.

Conclusion

16.  In the circumstances, I have ordered 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