AJAY KUMAR v. TORTURE CLAIMS APPEAL BOARD

HCAL 112/2020

[2025] HKCFI 2482

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 112 OF 2020

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

	consideration of the documents only; or
	consideration of the documents and the applicant being absent in open court ;

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 to withdraw the application for leave to apply for judicial review be refused.

3.  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 10 January 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 31 December 2019 (“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/HCAL000112_2020_files/the_Board's_Decision.pdf

2.  The Board decided that the applicant’s claims for non-refoulement protection were not made out on any of the applicable grounds under the Unified Screening Mechanism (“the USM”), and confirmed the decision of the Director of Immigration (“the Director”) dated 16 January 2019.

Amendments

3.  In Form 86, the applicant named the Board, the Non-refoulement Claims Petition Office and the Director as the proposed respondents, and also named the Board and the Non-refoulement Claims Petition Office as the proposed interested parties, when the putative respondent should just be the Board and the putative interested party should just be the Director.

4.  The Non-refoulement Claims Petition Office should not be named as a party at all, as it is just an office providing administrative and secretariat support to the adjudicators of the Board.

5.  Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board” and the name of the putative interested party is amended to “Director of Immigration”.

The applicant’s case

6.  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.

7.  In sum, the applicant claimed for non-refoulement protection because he feared that if refouled to India, he would be harmed or killed by his paternal uncles because of a dispute over a piece of land belonged to his late grandfather but given to his father.

Withdrawal and the oral hearing

8.  The applicant requested for an oral hearing of the Leave Application and a hearing was scheduled for 21 March 2025.

9.  However, before the hearing, the Immigration Department sent a letter dated 20 February 2025 to inform this court that the applicant had written a letter dated 24 January 2025 to withdraw his judicial review application. As stated in the applicant’s said letter, the reason he gave for this withdrawal application was that he wanted to go back to his home country as soon as possible, the problem in his home country was solved and it was safe for him to go back home.

10.  The applicant was absent at the hearing on 21 March 2025.

11.  As held in Re Abdus Salam [2019] HKCA 1091, an application for leave to bring judicial review should not be dismissed for want of prosecution merely because the applicant failed to attend the oral hearing of the leave application. The correct approach is to treat the applicant as having withdrawn his request for a hearing by reason of the absence at the hearing, and to proceed to determine the leave application on its merits.

12.  There is also no evidence to show that the applicant made the said withdrawal application other than out of his own volition. With this withdrawal application, it is clear that the applicant no longer wishes to proceed with the Leave Application.

13.  However, the Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 that:-

“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

14.  Thus, it is right for this court to deal with the Leave Application instead of leaving the action at large. The applicant’s application to withdraw the Leave Application is therefore refused, and this court will proceed to consider the merits of the Leave Application based on the written materials before this court.

Grounds for judicial review

15.  The applicant is required to identify clearly the grounds for his intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

16.  In Form 86, the applicant advanced the following grounds for his intended judicial review:-

(1)  The Board’s Decision was wrong and unfair;

(2)  The Board refused his case without any valid reason; and

(3)  The Board suggested him to relocate but it was not easy to relocate in India because of financial problems and so many other things.

17.  In his supporting affirmation dated 10 January 2020, the applicant raised two errors committed by the Board in the Board’s Decision as follows:-

(1)  “the board erred to judge my claim as the board mentioned in Paragraph 85-86 that i can relocate in india but i cant [sic] relocate because my paternal uncle will kill me as my father. if they locate me once. I am sure and i recived [sic] some information from my mother that my paternal uncle killed my father if i relocate in india and they will reloate [sic] me i am sure they will not leave me alive, because they afraid that i will kill them and get revenge of my father.”

(2)  “The 2^nd erred paragraph 86-88 that i did not submit any proof.now i can submit the death proof of my father that they are the one who killed my father but we cant [sic] report to police because my mother is alone she cant [sic] do report alone.Reporting in police they need money to action against the killer and my paternal uncle have a very good relation with police as i mentioned before.”

Discussion

18.  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).

19.  What the applicant raised in Form 86 and his supporting affirmation are basically challenges to the Board’s finding of facts. Such challenges are not allowed in judicial review, as it would otherwise amount to re-assessing the applicant’s claims.

20.  It is in fact untrue for the applicant to allege that the Board dismissed the appeal without any valid reason. The Board did consider the applicant’s claims carefully but concluded that the applicant was not a witness of truth and that he had either fabricated or exaggerated his claims.

21.  In particular, the Board found the applicant’s evidence illogical, as the alleged killing of his father by his uncles would not let the uncles have any gain. It also made no sense for the uncles to target the applicant at the time the claimed event occurred, as the applicant was not even the owner of the land in dispute.

22.  Thus, the Board did deal with the applicant’s alleged danger in India and gave detailed reasons for arriving at its conclusion that there was not a real risk the applicant would face any of the proscribed harms should he return to India.

23.  The Board was entitled to make such findings based on the evidence available. As the Board did not believe the applicant’s claims, this was already a good reason to dismiss the applicant’s appeal.

24.  As to internal relocation, the Board was entitled to reject the applicant’s claim that he could not relocate, as he offered no evidence that his uncles had the resources and nationwide connections to be able to locate him in a country of over one billion population. The applicant did not give any particulars as to what “financial problems and so many other things” were and how they could affect his internal relocation. In any event, those matters should have been raised before the Board, not to this court in judicial review (see Re Trinh Thuy Huyen [2024] HKCA 1090).

25.  Moreover, when the Board had concluded that the applicant did not face any of the alleged risks, it was unnecessary for the Board to consider internal relocation at all (see Gardi v SSHD [2002] 1 WLR 2755). Thus, it cannot help the applicant by raising the ground that it was not easy for him to relocate in India.

26.  The applicant claimed that he had additional evidence, namely, the death proof of his father and the information from his mother that his uncle killed his father. It is not for this court to accept new evidence in judicial review (see Nupur Mst, supra). The applicant should have produced all the evidence to the Board before it made such a finding of fact concerning his father’s death. This court will not usurp the fact-finding power vested in the Director and the Board. Hence, it cannot help the applicant by raising that he could submit further proof.

27.  Moreover, the applicant admitted in his withdrawal letter dated 24 January 2025 that his problem in his home country had been resolved and it was safe for him to go back home. It confirms that the applicant does not have any ground for non-refoulement protection at all. Thus, the intended judicial review is simply without any merits.

28.  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 error 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.

29.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be a reasonably arguable claim which enjoyed 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

30.  For reasons aforesaid, the application to withdraw the Leave Application is refused and the Leave Application is 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