NEERAJ KUMAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 570/2020

[2025] HKCFI 3621

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 570 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 on the Court’s own motion, naming only the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office as the Putative Respondent, naming only the Director of Immigration as the Putative Interested Party, and identifying the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office dated 18 March 2020 as the Judgment, order, decision or other proceeding in respect of which relief is sought; 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 dated and filed on 8 April 2020 (“Form 86”), the Applicant sought leave to commence a judicial review regarding a decision dated 18 March 2020.

2.  There is a decision relating to the Applicant dated 18 March 2020 of the Torture Claims Appeal Board (“TCAB”)/Non-Refoulement Claims Petition Office (“NRCPO”) (“TCAB Decision”)[1]. However, the TCAB Decision was not exhibited to his supporting affirmation also dated and filed on 8 April 2020 (“the Affirmation”). Indeed, no documents were exhibited to the Affirmation although it indicated an apparent intention to exhibit some sort decision of the TCAB with a total number of pages that did not match those of the TCAB Decision.

3.  At the oral hearing of the application, the Applicant confirmed that he sought leave to judicially review the TCAB Decision. He said that he had in the Affirmation intended to refer to a document in Punjabi which he thought he had submitted at the same time as the Form 86 and the Affirmation. However, after some consideration at the hearing, he told me that the contents of the English-language documents (i.e. the Form 86 and the Affirmation) would suffice. I have hence not referred, or had referred to me, any contents of this apparent Punjabi document.

4.  I have therefore amended the Form 86 of my own motion to reflect the identity of the proper putative respondent and interested party, and the decision in respect of which relief is sought. I will use the abbreviations and definitions from the TCAB Decision unless otherwise specified herein.

Background

5.  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 TCAB Decision, are set out in the latter decision. I will not repeat them but, in essence:

a.  The Applicant claimed non-refoulement protection on the basis that he would be harmed, ill-treated, or killed by his cousins because of a land dispute, and had the benefit of assistance from the Duty Lawyer Service in relation to his claim as made to the Director of Immigration (“the Director”);

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 a decision dated 30 November 2018 (“Director’s Decision”); and

c.  The Applicant appealed/petitioned to the TCAB/NRCPO, which held a hearing on 7 November 2019 (“TCAB Hearing”).

6.  The TCAB Decision was subsequently handed down, in which the TCAB/NRCPO rejected his claim for non-refoulement on all grounds and confirmed the Director’s Decision.

Legal Principles

7.  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).

8.  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).

9.  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

10.  No grounds for judicial review are set out in the Form 86 or the Affirmation. The body of the Affirmation contains some allegations regarding why the Applicant left India and what he would face if refouled, in relation to which the Applicant made some oral submissions at the hearing. I will set out and deal with such below.

11.  As the Applicant has not identified or set out any grounds of judicial review, there is no allegation of any procedural unfairness in relation to, of any error of law in, and/or of any irrationality/failure to meet the enhanced Wednesbury test in, the TCAB Decision. However, 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.

12.  The TCAB Decision, after setting out the Applicant’s procedural and immigration history (Paragraphs 1 to 4), outlined the case and evidence to the Immigration Department (Paragraphs 5 to 13) followed by his evidence and claims to the TCAB/NRCPO (Paragraphs 14 to 28). The next section assessed the Applicant’s claims and evidence, and set out relevant principles, documents before it, the TCAB/NRCPO’s observations and conclusions as to the Applicant’s credibility (Paragraphs 29 to 36), and the decision-maker’s findings as to past events (Paragraphs 37 to 38).

13.  This is followed by the decision-maker’s assessment of each of the 4 bases of risk, in which he found that none of them had been established having regard to the evidence before him and relevant principles such as official involvement, state acquiescence, the availability of state protection, and the reasonableness of internal relocation. Accordingly the TCAB/NRCPO found that the Applicant was not entitled to non-refoulement protection on any of the applicable grounds and confirmed the Director’s Decision (Paragraphs 39 to 72).

14.  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 vitiates the TCAB Decision. This is especially so as to the assessment, reasoning, and findings regarding the risk of harm, state protection, the availability of internal relocation, Torture Risk, Persecution Risk, BOR 3 Risk, and BOR 2 Risk[6], which are all matters primarily within the province of the decision-making body.

15.  The Affirmation contains some allegations by the Applicant said that he had come to Hong Kong to save his life from his cousins, he was tortured mentally by them, had managed to escape to Hong Kong from being killed or physically tortured, that his problem was still pending, and that if he was forced to return it would result in danger and death. No underlying documents were adduced in support, nor was an application made to adduce such. At the hearing he said to me that the meaning of such was that the problems with his cousins were still ongoing and that his understanding was that the danger would result in death.

16.  I do not see that such allegations are relevant to the issues before me or assist his application for leave. After all, judicial review is not a further avenue of appeal or for revisiting the assessment in the hope that the court may consider the matter afresh absent any legal error (see the authorities cited in Paragraph 8 above). Insofar as the Applicant is referring to events that took place prior to the TCAB Hearing then those do not satisfy the first condition in Ladd v Marshall [1954] 1 WLR 1489. I also do not accept that the second or third conditions are satisfied given the vague nature of the allegations, and also where the TCAB/NRCPO had actually accepted certain factual allegations advanced by the Applicant (Paragraphs 36 and 37) and considered such in reaching its conclusions (in particular those relating to risk of harm and internal relocation). I therefore reject the allegations as being inadmissible and irrelevant.

Conclusion

17.  In the circumstances, I dismiss the application for leave for judicial review and have made the orders set out 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