KHAN FAKRUDDIN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

1.   The Form 86 is amended on the Court’s own motion, naming only the Director of Immigration as the Putative Interested Party; and

2.   The application for 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 filed on 6 July 2020 (“Form 86”), which was accompanied by a supporting Affirmation also filed on 6 July 2020 (“the Affirmation”), the Applicant sought leave to apply for judicial review of a decision (which was exhibited to the Affirmation) of the Torture Claims Appeal Board (“TCAB”) / Non‑Refoulement Claims Petition Office (“NRCPO”) dated 29 May 2020 (“the TCAB Decision”)[1].  I will use the abbreviations and definitions from the TCAB Decision unless otherwise specified herein.  The Form 86 and Affirmation also apparently sought leave to apply for judicial review of the decision of the Director of Immigration (“Director”) dated 25 February 2019 (“Director’s Decision”), although such was not exhibited to the Affirmation.

2.  The Applicant sought an oral hearing of his application, but did not appear at that scheduled on 3 September 2025.  Whilst the Notice of Hearing issued by post on 7 August 2025[2] was returned to the High Court on 21 August 2025 with the indication “Incomplete Address”, by giving an apparently inaccurate and/or ineffective address to the court, he has failed to discharge his duty to give the court an address to which correspondence or notice can come to his attention in a timely manner (Islam Raja Rais v Director of Immigration, HCMP 881/2017, 26 June 2017; Said Umair v Torture Claims Appeal Board [2018] HKCA 82; Re Saqlain Muhammad [2018] HKCA 346; Hasmi Rizwan Imran [2018] HKCA 439).  Moreover, and for reasons best known to him, he did not respond to attempts by court staff to contact him, on 28 and 29 August 2025, at the mobile phone number provided.  In the circumstances I have dealt with his application on the papers.

3.  I have amended the Form 86 of my own motion to reflect the identity of the proper Putative Interested Party.

Background

4.  This is set out in the TCAB Decision.  While I will not repeat the contents thereof, in summary and in relation to the assessment of his claim:

(1)   The Applicant claimed non-refoulement relief on the basis that if he were sent back to India, he would be harmed or killed by his creditors;

(2)   The claim was assessed on the grounds of Torture Risk[3], BOR 2 Risk[4], BOR 3 Risk[5], and Persecution Risk[6] and was rejected by the Director of Immigration (“Director”) in a decision dated 25 February 2019 (“Director’s Decision”);

(3)   The Applicant appealed/petitioned to the TCAB/NRCPO, which held a hearing on 15 April 2020 and issued the TCAB Decision on 29 May 2020, in which it dismissed the Applicant’s appeal/petition.

Legal Principles

5.  An applicant, even one acting in person, is required to identify the grounds of judicial review clearly and succinctly in the Form 86, and to fully and frankly disclose all material facts and potential legal answers (Ho Loy & Another v Director of Environmental Protection, unrep.  HCAL 21/2015, 22 December 2016, Chow J. (as he was then) at §142; Leung Kwok Hung, unrep., HCAL 83/2012, 28 September 2013, Lam J. (as he was then) at §35; Begum Khadija [2018] HKCA 571; Khan Kamran [2020] HKCA 380).

6.  It is trite that the role of the Court in a judicial review is not to provide 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.  (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).

7.  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] HKCA 14, at §23).

Discussion

8.  The Form 86 and the Affirmation appear to allege that the Director’s Decision and/or the TCAB Decision were unreasonable, as the Applicant said within that his claim was not carefully considered, and that the decision-makers failed to consider all the matters raised in his claim and/or give adequate reasons.

9.  The attempt to seek leave in relation to the Director’s Decision is not reasonably arguable and must be rejected, since once the Applicant had appealed/petitioned to the TCAB/NRCPO, the Director’s Decision was (absent exceptional circumstances, of which none have been suggested to me) no longer susceptible to judicial review (Moshsin Ali [2018] HKCA 549; Yeni Setyawati v Torture Claims Appeal Board [2019] HKCA 1310; Sherpunja Thapa Kul Prasad [2022] HKCFI 2434 §18).

10.  Moreover, such generic, vague, and unparticularised assertions without reference to any underlying facts or matters establishing why, how, and where each of those complaints arise in relation to the TCAB Decision are not effective grounds to support a judicial review, and cannot assist an applicant (Re Mizan Sikder [2019] HKCA 20 at §17; Re Aziz Nasir [2019] HKCA 578 at §24; Re Kharsu Numan [2019] HKCA 626 at §24; Re Salim Ahmed [2020] HKCA 244 at §20; Haider Khalil [2021] HKCA 223 at §16; Akhondo Shakhil [2021] HKCA 1616 at §15).

11.  There is hence no properly particularised 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.  

12.  Nevertheless, given the seriousness of the issues at hand, I have in relation to the question of merits of the substantive application 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.

13.  The TCAB/NRCPO set out the Applicant’s procedural and immigration history (Paragraphs 1 to 8) then outlined the four relevant bases of risk with reference to relevant principles (Paragraphs 9 to 20). It summarised the facts of the Applicant’s case, moved on to the conduct of the oral hearing and its evaluation of the facts, found that state protection was available to the Applicant, and had regard to salient concepts and findings when it addressed Torture Risk, BOR 3 Risk, BOR 2 Risk, and Persecution Risk. As for internal relocation, it found that on the evidence it was open to the Applicant to relocate (for example, to Delhi or Mumbai) and it would not be unduly harsh for him to do so.  Having considered all of the evidence, it dismissed the appeal/petition (Paragraphs 21 to 56).

14.  I do not, from my examination and scrutiny, see that the Applicant has any reasonably arguable case that there was procedural unfairness (bearing in mind the need for a high standard of fairness), an error of law, and/or irrationality/failure to meet the enhanced Wednesbury test that is sufficient to vitiate the TCAB Decision and justify the grant of leave.  This is especially so given the assessment, reasoning, and findings regarding the Applicant’s evidence, credibility, risk of harm, state protection, and accordingly Torture Risk, Persecution Risk, BOR 3 Risk, and BOR 2 Risk.  Moreover, and in any event, the findings made in relation to internal relocation (which like the aforesaid matters are within the province of the decision-maker) would inevitably have led to the conclusion that there was no basis for affording the Applicant non-refoulement protection.

15.  I am not therefore not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success, or that there is any basis for the court to intervene by judicial review.

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