LALA ASHIS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1766/2021

[2026] HKCFI 3372

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1766 of 2021

Application for Leave to Apply for Judicial Review

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

Following:

1.   The Applicant’s Form 86 be amended to name the Director of Immigration as a putative interested party and name the Torture Claims Appeal Board/Non-refoulement Claims Petition Office as just a putative respondent;

2.   Extension of time to file the Form 86 be refused; and

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

Observations for the Applicant:

1.  By a Form 86 filed on 30 December 2021 (“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”) dated 20 November 2019 (“the Board’s Decision”).  The Director of Immigration (“DI”) made a first-tier decision on the Applicant’s non-refoulement claim on 22 December 2016 (“DI’s 2^nd Decision”) upon its assessment of all applicable grounds other than torture risk.  DI assessed the Applicant’s torture risk in another earlier decision dated 18 April 2012 (“DI’s 1^st Decision”).  On my own motion, I give paragraph 1 of my above order to amend the Form 86 to properly reflect the parties to this application.

2.  The Board’s Decision (which can be seen by the following hyperlink[1]) arose from the Applicant’s appeal/petition against DI’s 2^nd Decision. It was decided without an oral hearing. 

3.  The Applicant is an Indian national.  His non-refoulement claim was based on an alleged risk of being harmed or killed by his moneylenders, who were alleged to be also drug traffickers.  Without any oral hearing, the Board found that the alleged risk was not real and not substantial, the State of India did not consent to or acquiesce in (in its both active and passive sense, i.e. extended meaning under the case of AM v Director of Immigration [2014] 1 HKC 416 having been considered) any violence, there was available State protection, there was reasonable internal relocation alternative and the claim did not fall within a Convention ground for persecution risk.  The Applicant’s appeal/petition against DI’s 2^nd Decision was thus dismissed.

4.  There is no absolute right to an oral hearing before the Board and it is ultimately a question of fairness in the circumstances of each case.  In ST v Betty Kwan [2014] 4 HKLRD 277, Cheung CJHC (as he then was) explained in paragraph 26 of the judgment:

“…there is no absolute right to an oral hearing. Amongst other things, the question of whether an oral hearing should be afforded must depend on the standards of fairness required, the nature of the decision-making process in question, the procedural history of the matter including whether there has been an oral hearing before, the interest at stake and the importance of the decision (in terms of its outcome and consequence), the issue involved, and how the presence or absence of an oral hearing would affect the quality of the opportunity to make worthwhile or effective representations.”

5.  That said, as the lack of an oral hearing may potentially be procedurally unfair, the justification for not holding an oral hearing requires more vigorous examination.  The Board in deciding whether or not to call for an oral hearing reminded itself of the guidance in the said case of ST v Betty Kwan.  The Board explained that:

“23. The Board has considered the general principles and circumstances under which an oral hearing is required as set out in CACV 115/2013 [i.e. ST v Betty Kwan]. As a matter of law, in the context of administrative decision, there is no absolute right to an oral hearing. Whether an oral hearing is necessary will depend upon the subject matter and circumstances of the particular case and the nature of the decision to be made. Provided that the degree of fairness achieved is appropriate to the task, it is for the decision maker to decide how to proceed, and to decide whether an oral hearing is necessary. After reviewing the whole case, the Board found that no worthwhile and effective representation could be made and there would be no procedure unfairness to the Appellant if his appeal was determined without an oral hearing. The Board proceed to determine this appeal on the papers.”

6.  In ST v Betty Kwan, certain considerations as to whether an oral hearing should be conducted were mentioned:

(a)   whether there are anything missing from the appellant/petitioner’s case which might be brought out at an oral hearing;

(b)   whether there are any points of fact or law which can be better brought out;

(c)   whether there are any authorities, for or against the appellant/petitioner, that should be addressed;

(d)   whether there is any need for further questions, especially where an adverse inference may be drawn from facts, in which case the appellant/petitioner should have the chance to address the point;

(e)   whether there are any general advantages in holding an oral hearing, even though this might occasion extra trouble and expenses; and

(f)   whether, in the name of overall fairness, the appellant/petitioner might have anything useful to contribute by way of being heard.

7.  In his Notice of Appeal/Petition (“NoA”) against the Board’s 2^nd Decision, the Applicant stated and briefly elaborated 3 grounds of appeal:

(a)   DI wrongly stated, in DI’s 2^nd Decision, that he was arrested on 14 May 2002; he in fact surrendered to DI.

(b)   DI wrongly stated that he stayed in his parents-in-law’s home since 20 January 2006 for 3 to 4 months; he in fact came to Hong Kong in February 2006.

(c)   Internal relocation is not possible because he can easily be tracked by his mobile phone number and that the loan sharks (i.e. the moneylenders) have good political connection.

8.  Regarding ground (a) in the NoA, DI did not mention the Applicant was arrested on 14 May 2002.  Instead, DI recorded that he arrived at Hong Kong on 14 May 2002 with limitation of stay until 21 May 2002 (paragraph 11 of DI’s 2^nd Decision).  In any event, the holding of an oral hearing by the Board was unlikely to have any material impact on such a matter.

9.  Regarding ground (b) in the NoA, paragraph 19.2 of DI’s 2^nd Decision remarked that the Applicant moved to his parents-in-law’s house on 20 January 2006 and stayed there for 3 to 4 months.  However, immediately following that sentence, it was recorded that “you escaped to Hong Kong in February 2006”.  In other sections of DI’s 2^nd Decision, such as the immigration history in paragraph 12, the Applicant’s arrival in Hong Kong in February 2006 was repeatedly mentioned.  The mistaken statement of the Applicant staying in his parents-in-law’s house for 3 to 4 months has no impact on the overall assessment of the Applicant’s case.  The holding of an oral hearing by the Board was unlikely to have any material impact on such a matter.

10.  Regarding Ground (c) in the NoA, DI’s assessment of internal relocation was only a secondary decision; the primary one remained to be the lack of sufficient evidence to show that the feared treatment would materialize.  In fact, neither did the Board base entirely its decision on the availability of internal relocation alternative.  Other limbs of the Board’s Decision assumed more significance.  In these circumstances, it does not seem the holding of an oral hearing will be very important to the Applicant to make good the point about “mobile phone tracking”, as internal relocation alternative was not such a core issue which he had to overcome.  

11.  From a reading of DI’s 2^nd Decision and the NoA, I do not think the Board’s decision to determine the appeal/petition without an oral hearing was procedurally unfair.  It does not seem to me anything substantial could have been brought out or better brought out if an oral hearing was convened.

12.  In fact, in this leave application, the Applicant has not stated or outlined in the court papers what information or argument he had wished to provide or put forward but was unable to do so because of the lack of an oral hearing before the Board.  He did not set out any public law ground of judicial review against the Board’s Decision in the papers.  The above analysis comes out just because this Court observed that no oral hearing was conduced by the Board.  The Applicant did not state it specifically as a ground of judicial review in the documents.

13.  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 findings below 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).

14.  The filing of this application was also seriously out of time.  By reason of the lack of merits and the lack of reasonable explanation for the delay in this leave application, extension of time to file Form 86 is refused.

15.  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

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