|
HCAL 2170/2020
[2025] HKCFI 5732
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2170 OF 2020
|
BETWEEN
|
| |
Mohammed Nasim |
Applicant |
| |
and |
|
| |
Torture Claims Appeal Board |
Putative |
| |
|
Respondent |
| |
and |
|
| |
Director of Immigration |
Putative |
| |
|
Interested Party |
Application for leave to apply for judicial review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)
Following:
Order by Deputy High Court Judge Michael WONG:
1. On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board” and the name of the putative interested party be amended to “Director of Immigration”.
2. The applicant’s application for leave to apply for judicial review be dismissed.
Observations for the applicant:
The Leave Application
1. By way of Form 86 dated and filed on 28 October 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 15 October 2020 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL002170_2020_files/the_Board's_Decision.pdf
2. The Board found that the applicant had failed to establish his claim for non-refoulement protection on all the applicable grounds under the Unified Screening Mechanism (“the USM”). The Board also found that there was state protection available and internal relocation remained a viable option to the applicant. Thus, the Board dismissed the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 26 June 2018 and confirmed the same.
Amendments
3. In Form 86, the applicant named “Judy CY Ma Member of the Torture Claims Appeal Board” as the putative respondent and the Board as the putative interested party.
4. Ms Ma was making the Board’s Decision as a member of the Board. Thus, the Board should be named as the putative respondent instead.
5. Further, the Director, not the Board, should be the putative interested party.
6. Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and the name of the putative interested party to “Director of Immigration”.
The applicant’s case
7. It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.
8. In sum, the applicant claimed for non-refoulement protection because if refouled to India, he would be harmed or killed by his creditor Chotu and his followers as he could not repay the loan obtained from Chotu. The applicant claimed that Chotu was the right-hand man of the minister of the Indian political party called Bharatiya Janata Party (“BJP”) and had close connections with the police and the politicians.
Oral hearing
9. The applicant requested for an oral hearing of the Leave Application and his case was heard on 4 November 2025.
10. When this court asked the applicant for the grounds of his intended judicial review, the applicant merely said that he applied to stay here in Hong Kong.
Grounds for judicial review
11. The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).
12. However, the applicant did not assert any ground for his intended judicial review in Form 86, nor in his supporting affirmation dated 28 October 2020.
13. As aforesaid, at the oral hearing, the applicant merely said he applied to stay Hong Kong, which is not a valid ground for the intended judicial review.
Discussion
14. The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).
15. Thus, despite the lack of any valid ground being advanced by the applicant for the intended judicial review, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality.
16. In assessing the appeal by the applicant, the Board arranged an oral hearing on 19 June 2020 and the applicant was present. Thus, the applicant did have the opportunity to present his case to the Board in person. However, the applicant chose not to give oral evidence at the Board’s hearing.
17. As can be seen from the Board’s Decision, the Board did give detailed reasons as to why it concluded that the applicant had failed to establish a case for non-refoulement protection on all the applicable grounds under the USM.
18. The Board found the applicant’s evidence of obtaining a loan from Chotu vague and unreasonable. His evidence that BJP was the ruling party of West Bengal was in contradiction with the results of the election. The Board did not find the applicant a credible witness and did not accept his evidence of the loan from Chotu, nor he was assaulted and threatened by Chotu.
19. In any event, the Board found that the applicant’s fear only arose from his inability to repay a loan, which was a private matter. The Board did not consider the ill-treatment and injuries he sustained were so severe as to amount to torture. There was no involvement of government officials or anyone acting in the government capacity in the applicant’s dispute with Chotu. His fear of ill-treatment did not fall within any of the Convention categories. Thus, the Board found that there was no real risk the applicant would be killed by Chotu or his people.
20. Moreover, the Board found from extensive country of origin information (“COI”) that although there were problems with the Indian government and police, the Indian government and police had tried hard to improve the situation. The applicant had in fact never sought assistance from the police. The Board was of the view that a person’s reluctance to seek protection did not mean that effective protection was not available. The Board found that state protection was ready and available upon the applicant’s return to India.
21. The Board also found that there should be viable options for the applicant to settle at an alternative place in India. There was no evidence to show that Chotu was powerful enough to mobilize the BJP to search for the applicant all over India, which is a large country with huge population. Being an able-bodied man who received about 5 years of education with extensive work experience including running his own business in ready-made garment supply, it was not unreasonable or too harsh for the applicant to relocate to other parts of India.
22. The assessment of evidence, COI and risk of harm was primarily within the realm of the Board. The Board was entitled to come to its own conclusion. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.
23. Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.
24. As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.
Conclusion
25. For reasons aforesaid, the Leave Application is dismissed.
Dated the 25th day of November 2025
| |
( Irene LEE )
for Registrar, High Court
|
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
Notes for the applicant:
If leave has been granted, the applicant or the applicant’s solicitors must:
|
|
|
|
|
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
|
|
Sent/Handed to the applicant/the applicant’s solicitors on:
25 November 2025
Applicant’s ref. no:
Nil |
|
Sent/Handed to the putative respondent / the putative respondent’s solicitors / such putative interested parties as may be directed by the Court / the putative interested parties’ solicitors on:
25 November 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 12351/18/7/101/IN2469
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 1753/18
(Formerly RBCZ 10249/18)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
|