MOHAMMED TASLIM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 661/2020

[2025] HKCFI 2862

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 661 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 the Applicant being absent in open court;

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, only the Director of Immigration as the Putative Interested Party, and substituting “/Non-Refoulement Claims Petition Office” instead of the words “And Immigration Department”;

2.  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 dated and filed on 15 April 2020 (“Form 86”), which was accompanied by a supporting Affirmation also dated and filed on 15 April 2020 (“the Affirmation”), the Applicant sought leave to commence a judicial review.

2.  The Applicant sought an oral hearing of his leave application. At the hearing, he said he had nothing to add.

3.  The Form 86 refers to the “Decision of [Torture Claims Appeal Board] and Immigration Department (20 March, 2020)” as the Judgment, order, decision or other proceeding in respect of which relief is sought. However, on 20 March 2020 a decision was made of an Adjudicator of the Non-Refoulement Claims Petition Office (“NRCPO” and “NRCPO Decision”)[1]. The relevant decision of the Director of Immigration (“the Director”) is dated 9 January 2019 (“Director’s Decision”). Furthermore, the Applicant in his Affirmation only complains of the decision of the TCAB, and says that the Applicant wants to file a judicial review against the TCAB. It does not mention the Director or the Director’s Decision. There are no exhibits to the Affirmation.

4.  I therefore did and do not see that the Applicant was clearly seeking leave to commence a judicial review of the Director’s Decision. However, if and insofar as he apparently seeks such leave, that application stands only to be rejected, and I do so. This is because such an application is on the merits fundamentally misconceived given both the existence and implications of the two-tier system and the lack of exceptional circumstances justifying such an application (Moshsin Ali [2018] HKCA 549; Yeni Setyawati v Torture Claims Appeal Board [2019] HKCA 1310).

5.  I have also amended the Form 86 of my own motion to name only the TCAB/Non-Refoulement Claims Petition Office as the only putative respondent, only the Director of Immigration as the putative interested party, and to reflect that leave for judicial review is sought against the decision of the NRCPO.

Background

6.  The Applicant’s background and case as to the incidents underlying his claim for non-refoulement relief, and the immigration and procedural history leading up to the NRCRPO Decision, are set out in the same and I have referred to some of the above (Paragraphs 1 to 18). For the sake of concision I will not repeat them, but in essence:

a.  The Applicant had made an earlier claim for Torture Risk[2] which was rejected on 18 November 2013 (“the Torture Risk Decision”) (which has not been placed before me); and

b.  Subsequently the USM was implemented, and the Applicant’s claim for non-refoulement relief was made on the basis of BOR 2 Risk[3], BOR 3 Risk[4], and Persecution Risk[5], and as stemming from the risk of being harmed by two individuals (“M&S”) who the Applicant claimed were loan sharks. It was also claimed that internal relocation was not viable, apparently because M&S were members of and had connections to the Communist Party of India (Marxist) (“CPIM”).

7.  As recorded in the NRCPO Decision, the hearing before the NRCPO took place on 20 January 2020 at which, the Petitioner confirmed the truth and correctness of all the evidence contained in the Hearing Bundle, and gave oral testimony to the NRCPO with the benefit of an interpreter (see e.g. Paragraphs 15, 20, and 21 thereof).

Legal Principles

8.  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, (HCAL 21/2015, 22 December 2016) per Chow J. (as he was then) at §142).

9.  It is trite that judicial review is not 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: see 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.

10.  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

11.  The Form 86 and the Affirmation do not identify any grounds of judicial review. The Applicant merely stated in the Affirmation that “I don’t agree decision of [TCAB]. I want to file JUDICIAL REVIEW against them, I cannot go back my home country INDIA, Because my life is in danger over there.” There are hence no allegations 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 NRCPO Decision.

12.  Nevertheless, given the seriousness of the issues at hand, I have considered the NRCPO Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard.

13.  The NRCPO summarised the Applicant’s case and evidence given at the hearing (Paragraphs 8 to 18, and 20). There was then consideration and discussion of the Applicant’s evidence including of the relevant approach which that NRCPO said it had applied, of matters relating to persecution risk under the Refugee Convention, of the burden and standard of proof, of evidence in relation to nature and characteristics of the specific loan with reference to the relevant structure, legislation, and protections relating to the business of money lending in India, the status of the CPI(M), and of the law and evidence relevant to state protection (Paragraphs 19 to 55).

14.  The NRCPO then followed that with material findings of fact. It accepted that the Applicant was an Indian national, was outside his native country, had borrowed money from M&S, and was unable to repay it. However, it held that there was no nexus, on the Applicant’s alleged facts, to any of the 5 reasons under the Refugee Convention. It also, crucially, rejected the core allegations made by the Applicant that the debt placed him at risk of harm, that he had been maltreated, threatened, or persecuted by M&S, that any public, government, or state official had any connection with M&S or had acquiesced in such alleged ill-treatment, and found that he was not a credible reliable or witness on the risk of harm from M&S (Paragraphs 56 to 69). It then proceeded to make other findings in relation to state protection and grounds of non-refoulement (Paragraphs 70 to 75).

15.  The NRCPO then concluded – given the aforesaid and as it was entitled to – that the Petitioner had failed to make out his claim that he should not be refouled due to Persecution Risk, BOR 2 Risk, or BOR 3 Risk, and hence affirmed the Director’s Decision (Paragraphs 76 to 93).

16.  Having subjected the NRCPO Decision to rigorous examination and anxious scrutiny, I do not see that the Applicant has any reasonably arguable case of procedural unfairness (even bearing in mind the need for a high standard of fairness), error of law, and/or irrationality/failure to meet the enhanced Wednesbury test in relation to the NRCPO Decision.

17.  This is particularly so as to, and given, the assessment, reasoning, and findings rejecting the aforesaid essential parts of the Applicant’s evidence and allegations in support of his claim that he would be harmed by M&S, and hence as to the risk of harm, Persecution Risk, BOR 3 Risk, and BOR 2 Risk, which are all matters primarily within the province of the NRCPO. The Board gave, in my view and in context, adequate reasons for reaching such conclusions.

18.  The NRCPO did make some observations (e.g. at Paragraphs 72 and 86) which appear to relate to the issue of Torture Risk. While Torture Risk was not an issue before the NRCPO and had been already determined by way of the Torture Risk Decision, I do not see that such observations give rise to any such reasonable arguments in support of the Applicant’s application for leave, as:

a.  Unlike the Adjudicator in Md Nazir Ahmed Sarkar v TCAB [2021] 5 HKC 237 (CA) (as to which see §§36-41), on a fair reading of the NRCPO Decision (in particular Paragraphs 3 to 4, and 90 to 93) I do not consider that the NRCPO apparently purported to determine (or re-determine) the existence of Torture Risk; and

b.  Further and in any event, given the findings of fact reached by the NRCPO and on the documents before me, I see no reasonable argument that:

i.  such references tainted the NRCPO’s assessment of BOR 3 Risk (which was a live matter for the NRCPO); and/or

ii.  the NRCPO has, here, failed to take relevant matters into account (see and cf. Md Nazir Ahmed Sarkar, supra, at §§21-22, 36-41 and 45-52, and NRCPO Decision Paragraphs 71, and 84 to 85).

19.  There is hence no basis to interfere with the NRCPO’s findings of fact on matters which are primarily within its province.

20.  Given the NRCPO Decision and the aforesaid analysis, I do not see the relevance of the claim within the Affirmation that the Applicant’s life is in danger. I therefore reject such.

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

Conclusion

22.  In the circumstances, I have ordered 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