MANGAR REKHA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 775/2020

[2025] HKCFI 3918

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 775 of 2020

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions from the Applicant in open court;

1.  The Form 86 be amended by substituting, in the field describing interested parties, “Director of Immigration” in place of “Immigration Department”; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  By a Form 86 dated and filed on 27 April 2020 (“Form 86”), and an affirmation also dated and filed on 27 April 2020 (“Affirmation”), the Applicant sought leave to commence a judicial review regarding:

a.  A decision of the Director of Immigration (“Director”) dated 24 December 2018 (“Director’s Decision”); and

b.  A decision of the Torture Claims Appeal Board (“TCAB”)/Non-Refoulement Claims Petition Office (“NRCPO”) dated 6 April 2020[1] (“the TCAB Decision”).

2.  I will use the abbreviations and definitions from the TCAB Decision unless otherwise specified herein.

3.  The Applicant appeared at the oral hearing of his application. She said she had nothing to say or add.

4.  The Form 86 names the TCAB/NRCPO as the 1^st putative respondent and the 1^st interested party, the Director as the 2^nd putative respondent, and the Immigration Department as the 2^nd interested party. I have amended the Form 86 as set out above as it is the Director who should be an interested party in relation to the application for leave for judicial review of the TCAB Decision.

Background

5.  This is set out in the TCAB Decision. I will not repeat the contents thereof, but in summary:

a.  The Applicant claims non-refoulement relief on the basis that if she were sent back to India, she would be harmed or killed by her brother because she had refused to marry his friend;

b.  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 in the Director’s Decision dated 24 December 2018;

c.  The Applicant then petitioned/appealed to the TCAB/NRCPO, which held a hearing in relation to the Applicant’s non-refoulement claims on 20 March 2020; and

d.  The TCAB/NRCPO handed down the TCAB Decision on 6 April 2020 which dismissed the Applicant’s appeal/petition and confirmed the Director’s Decision.

Legal Principles

6.  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).

7.  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).

8.  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

9.  The Form 86 has obviously had the input of someone with legal training but does not set out any grounds of judicial review. Rather, in the Affirmation (which is in English with an interpretation clause, and which has also obviously had the input of someone with legal training) the Applicant has set out several matters on which she relies and can be summarised as follows:

a.  She seeks leave to apply for judicial review of both decisions, and she is entitled to “appeal against those decisions that would now be out of time”; (Complaint 1)

b.  Neither the Director nor the TCAB/NRCPO “have taken my unique situation into account fairly and sequentially”; (Complaint 2)

c.  Both the Director’s Decision and the TCAB Decision are eligible for judicial review as the determination “should be deemed invalid due to procedural impropriety”, apparently as she was “deprived of [her] basic right as a litigant to be informed of my legal rights, and to be duly informed of all information”, and that there was a “lack of assistance”, apparently as follows:

i.  After the issuance of the Director’s Decision[6]she was told by the Duty Lawyer Service (“DLS”) (which had arranged that the Director’s Decision be read to her via an interpreter) that there were no grounds for appeal, and “no second opinion was sought”. She lodged her Notice of Appeal without any legal advice and/or legal or language assistance, relying merely on her friends, and it was “not possible for me to satisfy any authorities, ground by ground, in accordance with USM grounds”; (Complaint 3)

ii.  While an interpreter was arranged for the purpose of the oral hearing before the TCAB/NRCPO, she “was not fully informed of the materials put before the [TCAB/NRCPO]”; (Complaint 4)

iii.  The TCAB Decision had never been read or translated to her in her first language. Without being properly advised of the reasons for such she cannot provide full grounds for “[her] appeal”, understand any of the reasoning thereof, and the lack of basic assistance is procedurally unfair. Given the decision-maker’s awareness that she did not speak, read, or write English it was “very insensitive and possibly unlawful that the Adjudicator would allow the [TCAB Decision] to be written in a language that I do not understand and did not provide me with professional help (certified interpreter/translator) in order to help me understand the reasons for rejection my claim”; (Complaint 5)

d.  That the adjudicator of the TCAB had “exercised his case management power wrongfully”; (Complaint 6) and

e.  She is hence “deprived of the opportunity to make a full application for leave to apply for judicial review” and reserves “the right to submit further evidence either in oral or in writing upon the [TCAB Decision] being read back to me in my first language via a qualified interpreter.” She wishes the court to “hear my case once again with the assistance of an Interpreter” and seeks that such be “translated to me for my better understanding, upon which I request to have reasonable and sufficient time to provide further written grounds”. (Complaint 7)

10.  Firstly, once the Applicant had pursued her appeal to the TCAB/NRCPO the Director’s Decision was (absent exceptional circumstances, of which none have been put before 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).

11.  The Complaints or portions thereof that relate to the Director and/or the Director’s Decision are hence not reasonably arguable and must be dismissed. When considering the other Complaints I shall ignore any portions that apparently relate to the Director and/or matters up to and including the Director’s Decision.

12.  Secondly, Complaints 2 to 6[7] apparently assert that there was procedural unfairness as she was not provided with legal and language assistance in relation to her appeal to the TCAB/NRCPO. However, I do not consider that they set out or give rise to any reasonably arguable ground of judicial review in the nature of procedural unfairness, error of law, and/or irrationality:

a.  Neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187, nor the judgment of FB v Director of Immigration HCAL 51/2007 grant the Applicant an absolute right to free legal representation at all stages of the proceedings. (Re Zafar Muazam (unrep., CACV 2/2018, 23 March 2018); Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17; Re Lopchan Subash [2018] HKCA 37; Re Ahmed Syed Rafiq [2018] HKCA 178 at §22; Vu Hong Diep v Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2023] HKCA 1378; Kamran Khan [2022] HKCFI 1924 at §§21-25 and [2022] HKCA 230 at §§16-17)..

b.  Here, I see nothing amiss with the lack of legal representation after the Director’s Decision or before the TCAB/NRCPO, given that the Applicant was legally represented prior to the making of the Director’s Decision. While the DLS can appear in appeal proceedings, this is subject to a merits test, and absent any assertion that the merits test had not been properly applied, the Applicant cannot complain about the lack of legal representation in proceedings before the TCAB/NRCPO (Zunariyah, supra, at §19). I do not see that such an allegation is advanced, let alone that there is any sufficient basis to support such. Even if (as claimed by the Applicant) a second opinion was not sought this is neither here nor there, particularly when she has not (despite the Affirmation having had the input of someone with legal training) alleged or provided supporting evidence that her case falls under the specific circumstances in which one would be sought[8].

c.  Similarly, the high standard of fairness does not require or include provision of interpretation at any time the Applicant claimed or desired, particularly when it was her choice to overstay in and surrender herself to the Immigration Department in Hong Kong, where the official languages are Chinese and English. She has to cope with and find ways around this issue and cannot expect to have the luxury of any documents to be fully translated into her first language for her benefit as and when she requires. She has to find assistance from among her friends and ethnic community. I hence do not see how any public law complaint, let alone unlawfulness, could possibly arise from the TCAB Decision having been written in English, or from the fact that the TCAB/NRCPO did not arrange for the TCAB Decision to be interpreted to her. Indeed, the Applicant’s Form 86 was in English, and the Affirmation is written in English with an interpretation clause. The Applicant hence has access to, and would have been able to seek, interpretation services and language assistance if necessary (Kamran Khan, supra; Zafar Muazam, supra).

d.  In any case, the Applicant should have been familiar with the information she had provided in the Bundle, in particular with the NCF and the record of her interview which were of core importance and which would have been prepared with the benefit of translation and legal assistance leading up to the Director’s Decision. Moreover, the Director’s Decision was dated nearly 3 months before the TCAB/NRCPO hearing, during which time she was able to file her notice of appeal/petition in time. She hence had ample time to familiarise herself with the Director’s Decision and the aforesaid core documents and information referred to therein, as well as COI referred to, and to bring any issues relating to interpretation and/or comprehension to the attention of the TCAB/NRCPO.

e.  Indeed, during the appeal process the Applicant did not apparently complain about or seek redress in relation to the lack of legal representation and/or any issues of interpretation/language/comprehension. Rather, and on the contrary, at the oral hearing before the TCAB/NRCPO she adopted all of the information contained in the Hearing Bundle and confirmed that they were all true and correct (Paragraph 32, TCAB decision). Moreover, the Applicant has not identified any specific difficulty, unfairness, and/or prejudice caused by or in relation to such issues, let alone any which are sufficient to vitiate the conclusions in the TCAB Decision.

f.  I also do not see any basis for her claim that the alleged lack of assistance has inhibited her ability to proceed with the present leave application, particularly when she has clearly been able to seek and had in fact obtained in these proceedings both language assistance (see Re Kartini [2025] HKCA 699 at §16(5)), and assistance from someone with legal training, and when at the oral hearing before me she had the assistance of an interpreter but said there was nothing that she wished to mention or add.

13.  Thirdly, given the matters above on language assistance I also do not consider that the Complaint 7 raises any reasonably arguable ground of judicial review. Furthermore, insofar as such and portions of the other Complaints (e.g. Complaint 5, and what remains of Complaint 1 if anything) apparently suggest that the present proceedings are an “appeal”, such a notion is misconceived and does not found an arguable ground of judicial review. As I have said, the role of the Court in a judicial review is not to provide a further avenue of appeal, and judicial review is not an avenue for revisiting the assessment in the hope that the court may consider the matter afresh.

14.  Fourthly, if and insofar as Complaints 2 and 6 are said to advance free-standing ground(s) of judicial review on their own different from those considered above, they do not refer to any underlying facts or matters and hence do not amount to proper, or properly particularised grounds of judicial review, since general assertions or propositions of law without particulars 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 §17; Re Kharsu Numan [2019] HKCA 626 at §24; Re Salim Ahmed [2020] HKCA 244 at §20; Haider Khalil [2021] HKCA 223 at §16).

15.  However, and notwithstanding such, given the seriousness of the issues at hand I have further 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 Complaints, including the possibility that Complaints 2 and 6 raise free-standing grounds.

16.  The TCAB Decision outlined the Applicant’s procedural and immigration history, the core of the Applicant’s claim, and the relevant bases of risk (Paragraphs 1 to 6). The latter were then elaborated on with reference to relevant principles (Paragraphs 7 to 16), followed by the details of the Applicants case and (as I have already mentioned) an outline of what happened at the oral hearing (Paragraphs 17 to 32).

17.  The decision-maker then went on to assess and find that the Applicant had failed to establish each type of risk. As to Torture Risk, he considered that there was no risk of the Applicant being actually subject to Torture as relevantly defined, and that state protection was available. Given the evidence and findings, there was also no risk of the relevant ill-treatment in relation to BOR 3 Risk, or to support BOR 2 Risk. Persecution Risk was also not established given the lack of a Convention reason (Paragraphs 33 to 49). The decision-maker went on to deal with internal relocation, finding that on the evidence the risk of harm from her brother was localised, and that it was permissible and viable for her to internally relocate to another city in India (Paragraphs 55). Accordingly, he found that her claim failed on all applicable grounds, rejected the appeal/petition, and confirmed the Director’s Decision (Paragraph 56).

18.  From my examination and scrutiny I do not 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 vitiates the TCAB Decision, even bearing in mind the Complaints mentioned above as raised in relation to the TCAB/NRCPO. I can therefore discern no reasonably arguable public law basis for faulting the process or the conclusions.

19.  In the circumstances, there is hence no basis for the court to intervene by way of judicial review, and I am not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success.

Conclusion

20.  Given the above, I dismiss the application for leave to apply for judicial review and have made the orders above.

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