KHURSID MIYAN 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 naming 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 citizen of India.  By a Form 86 filed on 8 July 2020 (“Form 86”), which was accompanied by a supporting Affirmation also filed on 8 July 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”) dated 24 June 2020 (“the TCAB Decision”)[1]. I will use the abbreviations and definitions from the TCAB Decision unless otherwise specified herein.

2.  The Applicant sought and attended the oral hearing of his application on 3 September 2025.  He confirmed that he wished to proceed with his application, and made some submissions which I 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 non-refoulement relief on the basis that if he were sent back to India he would be harmed or killed by various creditors of his;

(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 7 May 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 22 April 2020; and

(4)   The TCAB/NRCPO issued the TCAB Decision dated 24 June 2020, in which it found that the Applicant’s appeal/petition failed on all applicable grounds, 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. The same goes for the Affirmation and its exhibit. While the latter contains some handwritten allegations relating to certain facts of the case and to the alleged COVID-19 situation in India as of July 2020, such do not amount to grounds of judicial review as they do not contain any allegation of procedural unfairness in relation to, and/or of any error of law in, and/or of any irrationality/failure to meet the enhanced Wednesbury test in, the TCAB Decision.

9.  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.

10.  The TCAB/NRCPO set out the Applicant’s background, his immigration and procedural history, and case (including his evidence to the TCAB/NRCPO), the Director’s case, and the salient issues and principles (Paragraphs 1 to 13). While it was willing to accept the Applicant’s factual claims that he had been pursued by creditors due to confiscation of his goods by Indian customs as being “probably true”, it found that on the evidence no Refugee Convention reason was engaged, that there was no evidence (even on the Applicant’s own statements) that the Applicant had been subjected to serious harm, and that in any case both state protection was available and internal relocation was feasible, such that he did “not face any real risk of any form of harm” in different parts of India. It also rejected the existence of BOR 3 Risk, BOR 2 Risk, and Torture Risk based on the evidence before it, with regard (where relevant) to principles and matters such as the high threshold of proof, the need for consent or acquiescence of a public official or other person acting in an official capacity, and the lack of any claim or evidence of any consistent pattern of gross, flagrant, or mass violations of human rights in India. Accordingly, it found that the appeal/petition failed on all grounds and confirmed the Director’s Decision (Paragraphs 14 to 41).

11.  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, and that justifies the grant of leave.  This is especially so as to the assessment, reasoning, and findings regarding state protection, risk of harm, and internal relocation which are matters primarily within the province of the decision-making body.  Nor is there any public law basis to vitiate the decision-maker’s conclusions regarding Torture Risk, Persecution Risk, BOR 3 Risk, and BOR 2 Risk.

12.  As I have mentioned, the handwritten portions of the exhibit to the Affirmation refer to the alleged threat to the Applicant from his creditors, his dealings with customs, and to the COVID-19 situation in India as of July 2020. At the hearing before me the Applicant also said that he had solved his problem to a certain extent, and sought to submit certain documents in English and Hindi of various dates, including within 2023 and 2024, the contents of which were summarised to me by the court interpreter. He said that such showed that he had settled some of the outstanding penalties/duties payable by him to Indian customs, that he was keen to clear such so that he could go back home and be with his mother, and that while he would like to continue with his leave application, he needed time to solve the matter with the Indian government and to return to India.

13.  I do not see how any of these matters are in any way relevant to the leave application given the findings in and my aforesaid analysis of the TCAB Decision, the nature of judicial review proceedings which are not meant to provide a further avenue of appeal, and as the Court of Appeal has, since the hearing, clarified in Chidomere Christian Okechukwu v TCAB [2025] HKCA 694 that the test in Ladd v Marshall [1954] 1 WLR 1489 does not apply.

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

Conclusion

15.  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