AHMED SHABBIR v. TORTURE CLAIMS APPEAL BOARD

HCAL 345/2020

[2025] HKCFI 4432

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 345 OF 2020

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

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

1.      On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 2 March 2020”.

2.      The applicant’s application to withdraw the application for leave to apply for judicial review be refused.

3.      The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated and filed on 9 March 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of two decisions, namely:-

(1)     “The decision made on unknown date but notified to Applicant on 07 day of March 2020”; and

(2)     “The decision of the torture claims appeal Board/ Adjudicator, made on 02 day of March 2020 dismissing the Appeal by ruling that the Applicant fails to establish a case for Non-refoulement whether under the principles of Torture or BOR 2 or BOR 3 or Prosecution. (The Decision)”.

2.  The Torture Claims Appeal Board (“the Board”) made a decision dated 2 March 2020 (“the Board’s Decision”) in respect of the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 13 November 2018 (“the Director’s Decision”). The Board’s Decision can be viewed in the following hyperlink:

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000345_2020_files/the_Board's_Decision.pdf

3.  At the oral hearing before this court on 17 July 2025, the applicant confirmed with this court that he received the Board’s Decision on 7 March 2020.  Thus, the two decisions mentioned in Form 86 were both referring to the Board’s Decision and the only decision in respect of which relief is sought in the Leave Application is the Board’s Decision.

4.  The Board decided that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”).  Hence, the Board dismissed the applicant’s appeal/petition against the Director’s Decision and affirmed the same.

Amendments

5.  In Form 86, the applicant named “WONG Chi-wai, ESQ., Torture Claims Appeal Board, Formerly an Adjudicator appointed by the Secretary for Security as an Adjudicator (Torture Petitions) delegated by Chief Executive of the HKSAR to determine petitions to the Chief Executive pursuant to Art. 48(13) of the Basic Law for protection under Article 3” as the putative respondent, when the Board should be the putative respondent. 

6.  Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board”.

7.  As aforesaid, the decision in respect of which relief is sought in the Leave Application should be the Board’s Decision only.  Thus, on this court’s own motion, it is so amended.

The applicant’s case

8.  It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

9.  In sum, the applicant claimed for non-refoulement protection on the ground that he would face serious harm if refouled to India because he could not repay a loan of 2.5 million Indian Rupees and was persecuted by his moneylender named Rajesh, who was an active member and youth leader of a political party Bharatiya Janata Party (“BJP”).

Oral hearing

10.  The applicant requested for an oral hearing of the Leave Application and his case was heard on 17 July 2025.

11.  At the hearing, the applicant confirmed that he would rely on the grounds for the intended judicial review that were asserted in the document titled “GROUNDS ON WHICH RELIEF IS SOUGHT” annexed to his Form 86.

12.  When invited to elaborate on those grounds, the applicant said that the Board did not consider the problems he faced in India, the Board referred to newspapers reports which were inadmissible and he had been diagnosed with diabetes, which was serious and required time to treat.

13.  The applicant also told this court that the Board did not give him an opportunity to talk about his claims.  Even the interpreter at the Board’s hearing only asked him to reply yes or no.  When asked for the details, the applicant said that he would have told the Board that he took out a loan in India and could not repay it, he was beaten up and reported it to the police. He also said that BJP was strongly against Muslims, the moneylender was the leader of BJP in his area and the moneylender could find out where he was.

14.  The applicant further complained that the Board had used media information to make the decision but did not consider the reality that he had to face.  When asked which media information he was referring to, the applicant just said that it was a newspaper reference, but he could not remember which piece of newspaper reference it was.

15.  When asked which information was not correct, the applicant said that it was 5 years ago and he could not recall, especially when he had diabetes which affected his memory.  He developed diabetes after the Board’s Decision because of the stress.  If he could get treatment for his diabetes, he would be able to get documents from his country to be sent over here.  Although he could get treatment for his diabetes in India, one must have the means to do so.  Hence, he asked this court to give him a few months to get treatment and when he was better, he could get documents from India to make his case stronger, such as testimony from people to show the conditions in India, the money he borrowed and the police report that he lodged about his assault.

16.  This court explained to the applicant that this court was not to make finding of facts again and hence his application for more time to obtain documents was refused.

Withdrawal after the oral hearing

17.  After the hearing, the applicant filed an affirmation on 18 August 2025 to make an ex parte application for leave to withdraw the Leave Application.  The applicant stated in the affirmation as follows:-

“I WANT TO CANCEL MY CASE I AM SICK HIGH BLOOD SUGAR LEVEL”.

18.  There is no evidence to show that the applicant made the said withdrawal application other than out of his own volition.  With this withdrawal application, it is clear that the applicant no longer wishes to proceed with the Leave Application.

19.  However, the Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 that:-

“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

20.  Thus, it is right for this court to deal with the Leave Application instead of leaving the action at large.

21.  The applicant’s application to withdraw the Leave Application is therefore refused, and this court will proceed to consider the merits of the Leave Application.

Grounds for judicial review

22.  The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

23.  In the document annexed to Form 86, the applicant alleged that the Board was in breach of procedural fairness as follows:-

(1) the Board had unlawfully fettered its discretion by refusing the applicant’s appeal on the grounds that they did not satisfy the requirement;

(2) the Board acted in a procedurally unfair manner in dealing with the applicant’s appeal;

(3)  the Board’s decisions to refuse the applicant’s appeal were unreasonable or irrational in the public law sense, or are a result of procedural errors or unfairness; and

(4)  the Board failed to meet the greater care and duty owed to a self-represented claimant.

24.  The grounds that were advanced in the said document only contained “keys words” such as the Board’s Decision was wrong, unreasonable and irrational, the Board was procedurally unfair and the Board failed to meet the greater care and duty owed to a self-represented claimant.  There were no particulars given that are specific to the applicant’s case at all.  As aforesaid, the applicant did not elaborate on the said grounds at the oral hearing before this court either.

25.  In the applicant’s supporting affirmation dated 9 March 2020, the applicant advanced some more grounds, which are summarised as follows:-

(1)   The Director refused his non-refoulement claim just one year after he lodged his claim, which was quick.

(2)   There was no legal advice provided to the applicant before the filing of his appeal, and he was not legally represented at the appeal hearing.

(3)   The hearing bundle was given to him only shortly before the Board’s hearing, and was provided without interpretation.

(4)   The Board had relied on sources of news which were not officially recognized or were hearsay or were outdated.

(5)   The Board was unfair to decide on BOR 2 Risk[1] without it even being screened or judged by the Immigration Department first.

(6)   There were unacceptable and unexplainable grounds shown to refuse the applicant’s appeal/petition.

(7)   The Director and the Adjudicator had rejected his claim without any proper inquiry and without carefully understanding his situation.

(8)   The applicant was facing all these dangerous problems in his own country and the problems were getting more and more life-threatening.

26.  The grounds as stated above were in fact used by many applicants in similar applications for applying leave to judicially review the Board’s decisions. It is like a template for such applicants and they just used the grounds stated therein without any regard to their own situations.  Nevertheless, as the applicant is relying on the above grounds to make the Leave Application, this court will still deal with the grounds as discussed below.

Discussion

27.  First of all, this court will deal with the applicant’s assertion at the oral hearing.

28.  The applicant said that he wanted more time to adduce a police report from India about his assault.  In fact, the applicant had never mentioned to the Director or the Board that he had ever reported the assault from Rajesh to the police (see paragraph 8 and 31 of the Board’s Decision).  He had never mentioned the existence of any witnesses too.

29.  As held in Trinh Thuy Huyen v Torture Claims Appeal Board [2024] HKCA 1090), the Board had no duty to make investigation into any matter without the applicant raising it and it should not be considered by this court at this stage.  Thus, any police report or witness statement that the applicant intended to adduce at this stage cannot help him.

30.  The Board had already assessed the applicant’s alleged danger including the danger arising from his unpaid debt and Rajesh’s association with BJP.  The Board’s hearing was conducted with the assistance of an interpreter, and the applicant could have told the Board what he wanted to say through the interpreter.  It is the applicant’s bare allegation that the Board or the interpreter allowed him to answer only “yes” or “no”.  In fact, as can be seen from the Board’s Decision, the Board recorded a lot of information provided by the applicant at the oral hearing.  If the applicant was only allowed to answer “yes” or “no”, the applicant would not have provided such information to the Board.  Thus, the applicant’s allegation in this regard is not credible.

31.  As to the applicant’s complaint about a newspaper reference that the Board relied on, the applicant failed to identify which piece of newspaper reference or country materials that he intended to challenge.  He did not specify what was wrong in the piece of information he referred to either.

32.  Thus, nothing that the applicant advanced at the oral hearing before this court could constitute a valid ground to challenge the Board’s Decision.

33.  The grounds contained in the document titled “GROUNDS ON WHICH RELIEF IS SOUGHT” are general accusations that the Board’s Decision was wrong, unreasonable and irrational, the Board was procedurally unfair, and the Board failed to meet the greater care and duty owed to a self-represented claimant, etc.  These complaints without specificity cannot assist the applicant to challenge the Board’s Decision either.

34.  As held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”.  Thus, none of the grounds in the document titled “GROUNDS ON WHICH RELIEF IS SOUGHT” could establish any valid ground to challenge the Board’s Decision when they are so vague and general without any requisite particulars related to the applicant’s case.

35.  In the applicant’s supporting affirmation, he first mentioned that the Director refused his non-refoulement claim just one year after he lodged his claim, which was quick.

36.  This ground was directed at the Director.  As the Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review, the Director’s Decision cannot be the subject matter of the Leave Application (see Re Moshsin Ali [2018] HKCA 549).  In any event, this court fails to see how it could be regarded as quick for a non-refoulement claim to be assessed in one year, or how expedience in assessment relates to errors of law, procedural unfairness or irrationalities.

37.  The applicant alleged that there was a lack of legal assistance at the appeal stage.  However, the Court of Appeal has repeatedly emphasized that, as a matter of law, a non-refoulement claimant is not entitled to free legal representation at all stages of the process (see Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15; Re Tariq Farhan [2018] HKCA 17; and Re Lopchan Subash [2018] HKCA 37).  Thus, there is no substance in this allegation.

38.  Likewise, it is trite that the high standards of fairness required by law would not entail interpretation service being made available at any time the applicant desires (see Re Gurnishan Singh [2018] HKCA 704 and Re Gurung Sagar [2019] HKCA 658). The applicant’s allegations that the hearing bundle was not given to him with interpretation or translation simply cannot help him.

39.  Moreover, all the documents filed by the applicant in relation to the Leave Application were written in English.  This indicates clearly that the applicant is either familiar with the English language or he has access to such language assistance if needed.  The applicant cannot claim that he has been prejudiced at all.

40.  The applicant also seemed to suggest that the hearing bundle was given to him in short notice.  According to him, the hearing bundle was given to him on 30 December 2019 when the Board’s hearing was arranged to be held on 9 January 2020.

41.  This court notes that the Director’s Decision was dated 13 November 2018 and the applicant filed his Notice of Appeal/Petition to the Board within time.  This means that the applicant had more than one year to prepare for his appeal to the Board.  Further, most if not all of the materials contained in the hearing bundle was not new to the applicant.  Even assuming that his complaint that there were additional pages including revised Skeleton Submission of the Director were true, the applicant still had 10 days to read the Skeleton Submission before the Board’s hearing.  In any event, he could have asked for the hearing to be rescheduled if he considered he needed more time for preparation.

42.  Contrary to the applicant’s assertion that the Board had relied on sources of news which were not officially recognized or were hearsay or were outdated, the Board had properly identified all the country of origin information (“COI”) that it relied on.  As can be seen from the Board’s Decision, the COI were all quite up to date as at the date of the Board’s Decision.

43.  The applicant also alleged that the Board was unfair to decide on BOR 2 Risk without it even being screened by the Immigration Department.

44.  This ground is simply untrue.  Both the Director and the Board had assessed the applicant’s non-refoulement claim on all the applicable grounds under the USM.  Further, as held by the Court of Appeal in Re Moshsin Ali, supra, the appeal procedure from the Director to the Board provided an opportunity for a complete review of the decision by the primary decision-maker and that review is in the nature of a rehearing in the sense that it is not dependent an appellate error being demonstrated.  The appeal tribunal itself examines and considers all the materials and reaches its own view on the merits of the claim.  In doing so it will have regard to any additional materials the claimant may wish to place before it.

45.  Thus, the Board had, and in fact should, consider the applicant’s BOR 2 Risk independently.  There is no substance in the applicant’s accusation in this regard.

46.  The applicant also alleged that the Board had given unacceptable and unexplainable grounds to refuse his appeal/petition.

47.  Again, the applicant did not explain what grounds that the Board gave were unacceptable or unexplainable.  The Board’s conclusion was based on its finding of facts from all the evidence before it.  If the applicant is seeking to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.

48.  The Board was also accused of rejecting the applicant’s claim without any proper inquiry and without carefully understanding his situation.

49.  However, as can be seen from the Board’s Decision, it had given due consideration to the applicant’s evidence as well as the country situation of India before arriving at its conclusion.

50.  As to the last ground that was raised by the applicant, namely that he was facing all these dangerous problems in his own country and the problems were getting more and more life-threatening, the applicant cannot ask this court to re-assess his risks and dangers.

51.  It is therefore this court’s finding that the applicant has failed to establish any valid ground for challenging the Board’s Decision.

52.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

53.  Thus, even though the applicant has failed to establish any valid ground for challenging the Board’s Decision, this court will still scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.

54.  In assessing the appeal by the applicant, the Board held an oral hearing on 9 January 2020.  Thus, the applicant did have the chance to present his case to the Board in person. 

55.  The Board found the applicant’s account not credible and his account was rejected as untruthful.  The Board found that the applicant’s claim about the business he ran and the loan he obtained for starting this business were unsubstantiated.  The Board also rejected the applicant’s account about Rajesh’s assault on him.  The Board considered that there was insufficient objective evidence to substantiate the applicant’s assertion that Rajesh could utilize the network or resources of BJP or the local government authorities to do whatever he liked.

56.  After considering COI and all circumstances, the Board found that a reasonably effective criminal legal system existed in India; and any police or government officials who committed offences would be arrested, prosecuted and punished.  Even assuming that the applicant had suffered ill-treatment, there was no evidence indicating that Rajesh was acting in official capacity.  It was the applicant’s own evidence that he travelled freely to and from abroad several times since the default of the loan repayment in about May/June 2011 till his last departure from India in April 2012.  The Board found that reasonably sufficient state protection would be available to the applicant in his home country.

57.  Although the Board did not find any real chance that the applicant would be harmed if refouled, and noted the well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that he qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997), the Board nevertheless explicitly found that even assuming that the applicant might still face the risk of harm from Rajesh, internal relocation would be reasonable and not unduly harsh for him.  The Board considered that the influence and power of Rajesh, if any, was localized at the applicant’s home area.

58.  After due consideration of the law and the evidence as presented by the applicant, the Board found that the applicant was not entitled to non-refoulement protection on any of the applicable grounds under the USM.

59.  The finding of facts was solely within the ambit of the Board.  The Board was entitled to make its own decision.  This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

60.  Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof.  The Board also correctly identified the issues and observed a very high standard of fairness.  This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision.  The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision. 

61.  As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success.  It is the view of this court that the intended judicial review has no realistic prospects of success at all, and hence leave must be refused.

Conclusion

62.  For reasons aforesaid, the application to withdraw the Leave Application is refused and the Leave Application is 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