KHAJA PASHA 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 Torture Claims Appeal Board/Non-refoulement Claims Petition Office as the Putative Respondent, and 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 29 June 2020 (“Form 86”), which was accompanied by a supporting Affirmation also filed on 29 June 2020 (“the Affirmation”), the Applicant sought leave to apply for judicial review of a decision of the Torture Claims Appeal Board (“TCAB”)/ Non-Refoulement Claims Petition Office (“NRCPO”) made on 22 June 2020 (“the TCAB Decision”)[1] which was exhibited to the Affirmation.  I will use the abbreviations and definitions from the TCAB Decision unless otherwise specified herein.

2.  The Applicant sought and attended an oral hearing of his application, which took place on 28 August 2025.  He made some submissions, which I have set out below.

3.  I have amended the Form 86 of my own motion to reflect the identity of the proper Putative Respondent, and 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 that if he were sent back to India, he would be harmed or killed by one AS, a money lender, and his men;

(2)   The claim was assessed on the grounds of Torture Risk[2], BOR 2 Risk[3], BOR 3 Risk[4], and Persecution Risk[5] and was rejected by the Director of Immigration (“Director”) in a decision dated 26 March 2018 (“Director’s Decision”);

(3)   The Applicant appealed/petitioned to the TCAB/NRCPO, which held a hearing in relation to the Applicant’s non-refoulement claim on 15 April 2020; and

(4)   The TCAB/NRCPO issued the TCAB Decision on 22 June 2020, in which it found that none of the grounds of non-refoulement protection had been established, and confirmed the Director’s Decision.

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 does not identify any grounds of judicial review, and hence contains no allegation of 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.

9.  However, exhibited to the Affirmation was a handwritten document which contained “Relief sought” and “Grounds on which relief is sought”. The latter section contained the following allegations:

(1)   That the respondent was in “in breach of procedural fairness in the following parts”, namely in Grounds 1 to 11 which have been copied almost word for word from Grounds 1 to 11 (including spelling errors e.g. “fattered” instead of “fettered”) advanced by other applicants in Amin Ullah v TCAB/NRCPO [2025] HKCFI 1913 and Sofiatun v TCAB [2022] HKCFI 765[2023] HKCA 1005, namely:

i.   “It is trite law that a hearing before the Appeal Board is a rehearing, and the Adjudicator is required to consider afresh the original decision and arrive at this own determination in respect of the claims.” (Ground 1)

ii.   “The respondent's decision to refuse the applicant's appeal were (sic) unreasonable or irrational in the public law sense, or are a result of procedural errors or unfairness.” (Ground 2)

iii.   “The Director had unlawfully fattered (sic) his discretion by refusing the applicant's appeal on the grounds that they didn't satisfy with (sic) the requirements.” (Ground 3)

iv.   “The respondent failed to meet the greater care and duty owned (sic) to a self-represented claimant.” (Ground 4).

v.   “The Adjudicator acted in a procedurally unfair manner in dealing with the applicant's appeal.” (Ground 5)

vi.   “It must be keep (sic) in mind that the life and limb are in jeopardy and the applicant's fundamental human rights not to be subjected to torture in (sic) involved.” (Ground 6)

vii.   “In dismissing the applicant's appeal/petition, there is no indication that the Adjudicator interacted with the facts of applicant's claim, conducted any analysis of the supporting documents or turned his mind to the ground under consideration being the risk of violation of the applicant's right to life under BOR 2.” (Ground 7)

viii.   “The applicant will face hardship if he is to return back to his home country and that the Torture Claims Appeal Board has significantly relied on source of news which is not officially recognized, or it is simply hearsay.” (Ground 8)

ix.   “The characterization of the appeal process is grounded in the consistent practice of the Appeal Board in treating each appeal/petition as a de novo hearing, whereby the appeal Board is not confined to any grounds of appeal put forward, but considers all the facts of the claim afresh to come to its own findings. The established practice of the appeal Board in this regard is either grounded and illustrative of its relevant obligations; and/or in any case has induced a procedural expectation that a claim would be considered afresh under applicable grounds.” (Ground 9).

x.   “The Adjudicator has relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculation.” (Ground 10)

xi.   “In spite of the applicant's problems in his home country are very severe and he had already submitted the documents on behalf of the applicant's claim, the Adjudicator of the Torture Claims Appeal Board may not be greater caring (sic) and made the claimant disappointed.” (Ground 11)

(2)   Various submissions under the headings “Grounds of the applicant”, “Torture Risk” and “Persecution Risk” which relate to the Applicant’s underlying non-refoulement claim, including the claim that he was tortured by AS in India, has “torture risk” there, and faces “being tortured or killed” if refouled due to the threat from AS, and that if refouled he will face “persecution risk” as he is a Muslim and will be “persecuted by [AS] and by the authorities”. (Grounds 12 to 14)

10.  However, Grounds 1 to 11 are 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. None of them are 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.  As for Grounds 12 to 14, such do not amount to grounds for judicial review, but rather constitute attempts to re-argue the merits of the application.

12.  Nevertheless, 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, and bearing in mind the allegations made by way of Grounds 1 to 14.

13.  The TCAB/NRCPO set out the Applicant’s procedural and immigration history, and the nature of the proceedings and documents before it (Paragraphs 1 to 6). The decision-maker then referred to the relevant law as attached to the decision (Paragraph 7, and Attachment), summarised the Applicant’s claims as had been set out in writing (Paragraphs 8 to 18), and addressed the conduct of and issues and evidence raised at the hearing (Paragraphs 19 to 27).

14.  The TCAB/NRCPO then set out its assessment of the Applicant’s credibility and his claims, and its findings of fact, with reference to adequate and salient reasons. It found that the Applicant’s claims that he had borrowed money from a money lender, and that he feared the latter’s political connections, to be completely lacking in credibility, that the credibility of the Applicant’s claims were undermined in their totality, and that the Applicant’s claim that he had borrowed money which he was unable to repay was untrue. The Applicant’s claim that he feared harm at the hands of AS or anyone else was also untrue. The Applicant had not established any grounds for finding that he would face a real risk of ill-treatment as claimed should he be refouled, nor any genuine and substantial risk that he would be subject to claimed ill-treatment should he be refouled. Accordingly, the Applicant was not at risk of harm from AS or anyone else should he return to India. As for the Applicant’s claim at the hearing that AS would be able to harm the Applicant with impunity as the Applicant was a Muslim, the decision-maker observed that such claim was unsupported by evidence or COI, and that the latter did not support a claim that there were substantial grounds for believing that the Applicant would be in danger of harm should he returned to India on the basis of the general security situation there.  The Applicant was hence not entitled to non-refoulement protection as the harm the Applicant claimed to fear only arose because of the claimed debt (as the Applicant had stated that he did not fear violence because of his religion), and as there were no personal factors which would elevate any general risk of violence against him as a Muslim. Hence, none of the four types of risk had been established, all of the claims for non-refoulement relief failed, and the Director’s Decision was confirmed (Paragraphs 28 to 51).

15.  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 or justify the grant of leave.  This is especially so as to the assessment, reasoning, and findings regarding the evidence, credibility, and risk of harm, which are matters primarily within the province of the decision‑making body.  Nor do I see any reasonably arguable public law basis to vitiate the decision‑maker’s conclusions regarding Torture Risk, Persecution Risk, BOR 3 Risk, and BOR 2 Risk. On the contrary, and having had regard to the Grounds allegedly raised in the exhibit to the Affirmation:

(1)   None of Grounds 1 to 11 are reasonably arguable, as it is evident that the decision-maker considered the matter afresh and arrived at his own determination, and in doing so considered and analysed the facts of the Applicant’s claim, documents, and relevant grounds with care, and without deviating from the high standard of fairness. I also do not see any basis on which I can conclude that the vague and unparticularised complaints relating to reliance on sources of news, or cases are reasonably arguable; and

(2)   I also do not see that any or all of Grounds 12 to 14, even if they are considered in conjunction with any or all of Grounds 1 to 11, amount to any reasonably arguable grounds for judicial review. Insofar as they attempt to re-argue the merits of the application, such are misguided and do not assist the Applicant given that that judicial review proceedings are not meant to provide a further avenue of appeal.

16.  At the hearing before me, the Applicant claimed that his problem had not been resolved, he could not return to India for safety reasons, that “that person keeps wanting to try and come to Hong Kong and harm me” but he had “heard” that the visa had been rejected hence he could live in Hong Kong safely, and that he wished to continue doing as he had lived here safely for 10 years without committing a crime, whilst in the meantime his father had apparently passed away and he had “nobody back home”.

17.  I do not see how any of these bare allegations are in any way relevant to his leave application, given not only the findings in and my aforesaid analysis of the TCAB Decision, but also the nature of judicial review proceedings which are not meant to provide a further avenue of appeal.

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

Conclusion

19.  In the circumstances, I have made the orders above, including 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