SYED SULTHAN MOHAMED THASTHAGEER v. NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 757/2020

[2025] HKCFI 4158

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 757 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 by the Applicant in open court;

1.   The Form 86 is amended on the Court’s own motion, naming only the Non-Refoulement Claims Petition Office as the Putative Respondent, and naming only the Director of Immigration as the Putative Interested Party; and

2.   Application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  The Applicant is from India.  By a Form 86 dated and filed on 23 April 2020 (“Form 86”), and a supporting affirmation also dated and filed on 23 April 2020 (“the Affirmation”), he sought leave for judicial review of a decision of the Non-Refoulement Claims Petition Office (“NRCPO”) dated 11 March 2020 (“NRCPO Decision”)[1], which was the only document exhibited to his Affirmation.

2.  The Applicant sought an oral hearing of his application, at which he appeared and made some submissions.  His Affirmation also contained some grounds for judicial review. I have set out and considered such below.

3.  I have amended the Form 86 to properly identify the putative respondent and the putative interested party. I will use the abbreviations and definitions from the NRCPO Decision unless otherwise specified herein.

Background

4.  This is set out in the NRCPO Decision and the USM 151 Decision (defined below). I will not repeat the contents thereof, but in summary:

(1)  The Applicant claimed non-refoulement relief on the basis that if he were sent back to India, he would be harmed due to a religious and class conflict stemming from his love and marriage to a woman of a different religion and caste;

(2)  The Applicant’s claim was assessed on the basis of Torture Risk[2], BOR 3 Risk[3], and Persecution Risk[4] and was rejected as not being substantiated in a decision of the Director dated 8 August 2014 (“Director’s 1^st Decision”);

(3)  The Applicant filed a Notice of Appeal/Petition as regard the Director’s 1^st Decision to the TCAB/NRCPO, which held an oral hearing on 26 and 27 February 2015 (“USM 151 Hearing”) at which the Applicant gave evidence;

(4)  The TCAB/NRCPO rejected the Applicant’s claims that he faced BOR 3 Risk, Persecution Risk, or Torture Risk in a decision dated 21 March 2017 (“USM 151 Decision”)[5]. No further steps were or have been taken by the Applicant in relation to the USM 151 Decision;

(5)  The Director further assessed the Petitioner’s claim as based on BOR 2 Risk[6], during which process the Applicant wrote on 25 April 2017 to make further claims (NRCPO Decision Paragraph 19, see also Director’s Further Decision defined below). The Director rejected the Petitioner’s BOR 2 Risk claim by a decision dated 10 May 2017 (“Director’s Further Decision”);

(6)  The Applicant petitioned to the NRCPO for relief against the Director’s Further Decision. The NRCPO was constituted by the same adjudicator who had made the USM 151 Decision; and

(7)  On 4 July 2019 the NRCPO wrote to the Applicant and invited him to provide further information toward the assessment of the petition, but no response was received (NRCPO Decision Paragraph 20). The decision-maker then handed down the NRCPO Decision on 11 March 2020, in which it held that even on the assumption his contentions were accepted in full, the Applicant was not entitled to non-refoulement relief on the basis of BOR 2 Risk, and confirmed the Director’s Further 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 Applicant has not identified or set out any grounds of judicial review in the Form 86. However, the Affirmation sets out the following purported grounds for judicial review (collectively, “Grounds”), which I reproduce verbatim:

(1)  “Procedural Impropriety) Failure to properly apply para 2 of the UN committee against Torture general Comment No. 2 whereby satisfaction of a National states obligations to conduct sufficient due diligence requires that reforms and means of relief introduced must be effective in any event, cf, the TCAB and the Director Decision which focused on whether such reliefs showed merely signs of positive improvement ( see also JKF CACV 103 /2014)” [7]; (Ground 1)

(2)  “Procedural Impropriety) Failure to conduct sufficient inquiry into the relevant country of origin conditions.the TCAB Failure to consider that I would face serious risk from my enemies who will harm me because of my political and statistical view which consider a serious matter for which he would definitely harm me upon refoulement”;(Ground 2)

(3)  “Procedural Impropriety/ Irrationality) Failure to reasons for assessment of Lack of BOR 2risk and / or sufficient basis to support conclusion of lack of BOR 2risk”;(Ground 3)

(4)  “Error/ Misdirection in law) Failing to take into account the considerations of psychological strain and threats to me personally or threats to me directly to kill me;” (Ground 4)

(5)  “Procedural Impropriety) The TCAB Failure to consider our fear that my enemies still fear for me, I could no return to my country in this circumstance, therefore there are genuine risk awaiting for me, and I could not relocate other places because they could easily trace me wherever i hide in my country.” (Ground 5)

(6)  “No sufficient basis to conclude that I and my family members would not to be at risk of being subjected to torture and or/ CIDTP upon refoulment.” (Ground 6)

9.  Firstly, the complaint in Ground 1 relating to the Director’s Further Decision is not reasonably arguable, as once the Applicant had pursued his appeal to the TCAB/NRCPO the Director’s Further Decision was (absent exceptional circumstances, of which none have been suggested to 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).  I shall hence ignore that portion of Ground 1.

10.  Secondly, the Grounds are merely generic, vague, and unparticularised assertions using selected keywords and phrases without reference to any underlying facts or matters establishing why, how, and where each of those complaints arise in relation to the NRCPO Decision.  They are hence entirely inadequate, as 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). This is unsurprising since the alleged Grounds have been copied more or less word for word from other cases, with (as will become apparent below) little consideration given to the facts of the Applicant’s case.

11.  Nevertheless, and 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 and bearing in mind the need for a high standard of fairness. Having done so I do not consider, for reasons below, that there is any reasonably arguable case that the NRCPO committed any errors of public law sufficient to vitiate the NRCPO Decision, including those alleged by way of any or all of the Grounds.

12.  The NRCPO set out the Applicant’s procedural and immigration history, the salient issue of BOR 2 Risk, and the Applicant’s case before the NRCPO (Paragraphs 1 to 20). It then assessed the level of risk to the Applicant with regard to relevant COI relating to caste, religion, politics, and on the evidence, and considered that the lack of state involvement/consent/acquiescence, the availability of state protection in India, and the availability of reasonable and not unduly harsh internal relocation alternatives (including beyond Tamil Nadu, such as to Mumbai which is in Maharahstra state, and to New Delhi) meant that there was no reasonable likelihood that the Applicant would be deprived of his life if refouled. Hence the petition was dismissed and the Director’s Further Decision was confirmed (Paragraphs 21 to 34).

13.  I do not see that there is any reasonably arguable as alleged by Ground 1. The Applicant has failed to identify or provide any particulars of the alleged “reforms and means of relief”, let alone how they apply to his case, in what way the NRCPO had failed to consider them properly, or how the NRCPO had fallen short of the high standard of fairness in the assessment and the determination of his non-refoulement claim based on BOR 2 Risk. I also do not see that such claims are made out on the evidence before me.

14.  Ground 2 is also not reasonably arguable. Firstly, the Applicant has failed to explain how his non-refoulement claim relates to his “political and statistical” view.  Secondly, and even if I were to assume that such relate to his claims of caste and religious discrimination, the Applicant has failed to identify how and in what manner the NRCPO failed to conduct sufficient inquiries into COI or other country of origin conditions, let alone how that has somehow tainted the conclusions reached in the NRCPO Decision. On the contrary, from the NRCPO Decision it is clear that the decision-maker clearly inquired into, considered, and assessed such matters in disposing of the petition. I see no reasonable argument that the decision-maker erred as alleged in Ground 2, let alone one sufficient to suggest that the conclusions in the NRCPO Decision should be vitiated.

15.  As to Ground 4, the Applicant did not claim that any threat had been made to him “directly” that he would be killed. He also did not claim that he had suffered psychological ill-treatment, strain, or effect as a result of any threats to kill him. There is hence no basis to suggest that there has been any error or misdirection in law.

16.  Grounds 3 and 5 also do not establish reasonably arguable grounds of judicial review that would entitle the Applicant to the relief sought. Firstly, the NRCPO clearly considered the Applicant’s fear, but assessed that on the merits there was no BOR 2 Risk. It was entitled to do so given its findings as to the lack of state involvement/consent/acquiescence, and the availability of state protection and internal relocation, which were (as with BOR 2 Risk) matters within its province. Secondly, the NRCPO clearly gave sufficient reasons and bases for its assessments. Thirdly, I can see no reasonably arguable public law basis which would justify vitiating those findings[8], and hence there is no basis to vitiate the NRCPO’s conclusion as to BOR 2 Risk.

17.  Ground 6 is also misconceived and must be dismissed. The issue before the NRCPO was BOR 2 Risk, as Torture Risk, BOR 3 Risk, and Persecution Risk had been assessed and rejected by way of the USM 151 Decision. There is also no basis or reason for the Ground to refer to “family members” when the only claim for non-refoulement relief before the NRCPO was that of the Applicant.

18.  In conclusion, given the above 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 is sufficient to vitiate the NRCPO Decision, including in the nature of any of the Grounds advanced.  This is especially so as to the assessment, reasoning, and findings regarding state protection, the risk of harm, internal relocation, which are all matters primarily within the province of the decision-making body, and BOR 2 Risk.

19.  At the hearing before me the Applicant claimed that he still faced “the same threat” and his “problems are not solved”, “the situation had not changed”, and that his family members were now all scattered and living in different places “because of the problem” faced by his family members, such that his brothers could not attend his mother’s funeral. He also claimed that when he had fled India his friend had helped him, but that that friend had since died. However, these are bare and unsubstantiated allegations, and in any event I do not see how they are relevant to or assist his application for leave given the findings in, and my conclusions above as to, the TCAB Decision, and as judicial review proceedings are 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. I therefore reject and have disregarded such claims.

20.  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

21.  In the circumstances, I have ordered that the application for leave to apply for judicial review be dismissed and made the other 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