HARDEV MASIH 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.  Form 86 be amended, naming only the Torture Claims Appeal Board/Non-refoulement Claims Petition Office as the putative respondent and only 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 a Form 86 dated 28 April 2021 (the “Form 86”), the Applicant applied for leave to apply for judicial review against the decision by the Torture Claims Appeal Board (the “TCAB”) dated 22 March 2021 (the “TCAB Decision”), which affirmed the decision of the Director of Immigration (the “DOI”) dated 27 November 2018.

2.  I amend the Form 86 on my own motion, naming only the TCAB as the putative respondent and the DOI as the putative interested party.

3.  The Applicant requested for a hearing of this application and attended the same.  When asked, he said that he had nothing to add.

4.  In the Form 86, the Applicant also sought leave for judicial review against the DOI Decision.  But the DOI Decision is superseded by the TCAB Decision (Re Moshin Ali [2018] HKCA 549 at [45]).  The present application only concerns the TCAB Decision.

Background

5.  The Applicant is a national of India.  In gist, he fears that he will be harmed or killed by the Sikh Leaders should he return to India as he was baptized as a Christian.  The Applicant’s personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be viewed through a hyperlink[1].  I shall therefore not repeat them.  Unless otherwise specified, TCAB’s abbreviations and descriptions are adopted herein.

Discussion

6.  The leave application operates as a filtering process and there is no requirement or expectation to give elaborate reasons for my decision: Re Zunariyah [2018] HKCA 14 at [23].  It is sufficient to state my observations after considering the TCAB Decision and the materials adduced by the Applicant.

7.  I remind myself that in a judicial review, this court does not provide a further avenue of appeal.  While I also remind myself that in non-refoulement cases, I would adopt an enhanced standard in scrutinizing the decision of the TCAB given the seriousness of the issue at hand, this court would not usurp the role of the TCAB, which together with the DOI are the primary decision-makers. A finding of fact is exclusively within the realm of the TCAB, and this 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: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].  There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

8.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (unreported, HCAL 21/2015, 22 December 2016) at [142], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

9.  The Applicant’s affirmation enclosed a document titled “Grounds on which Relief is sought”, which contains 4 grounds.  However, those grounds are vague and generic, and do not in truth point to any error of law, procedural unfairness or irrationality of the TCAB Decision.  This Court has seen these standard grounds many times.

10.  As can be seen from the TCAB Decision, the TCAB took into account all the evidence available and found that on the basis of the same, applying the correct legal principles in respect of all applicable grounds[2] under the Unified Screening Mechanism, the Applicant’s allegations were insufficient to make out any of the applicable grounds [34-48].  In particular, I agree with the TCAB that the Applicant’s issue was purely a private and personal matter involving conversion of religious belief.  It was not religious persecution all over India, as corroborated by the country of origin information (COI) [36, 16-33].  As such, there was no evidence whatsoever to suggest that state protection would not be available to him [38, 47], and the Applicant could relocate.  It is noted that when the Applicant stayed in Ramdas, the Sikh Leaders could not locate him [49-60].

11.  There is a clear mismatch between the purported grounds the Applicant raised and the actual findings of the TCAB. E.g. the Applicant’s case does not contain even an assertion that “The [Applicant] was tortured at Behest and the state law enforcement agencies as well as those in the high ups of political circles” (ground 2).  Ground 3 did not state how the TCAB’s consideration of the COI was incorrect.  What is more, the COI in question mainly concerns the issue of Christianity in India, not “the Applicant’s aversions that the police in his country would not be able to protect”.  There were also no “reports” from the human rights organization which “stated testament to the applicant’s assertions” (ground 4).

12.  All in all, I do not see any errors of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.  The Applicant’s intended challenge to the TCAB Decision is not reasonably arguable, and accordingly the application for leave to apply for judicial review 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