KHAN KAMAL 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 only the Director of Immigration as the Putative Interested Party;

2.   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 filed on 13 July 2020 (“Form 86”), which was accompanied by a supporting Affirmation also filed on 13 July 2020 (“the Affirmation”), the Applicant sought leave to commence a judicial review of a decision of the Torture Claims Appeal Board (“TCAB”), which was also a decision of the Non-Refoulement Claims Petition Office (“NRCPO”), made on 30 June 2020 (“the TCAB Decision”)[1]. The TCAB Decision was exhibited to the Affirmation.

2.  The Applicant sought an oral hearing of his application. One was scheduled for 3 September 2025.  He appeared at such and said he had nothing to say.  He had no comments on my intention to amend the Form 86 of my own motion, which I have done above, to reflect the identities of the proper Putative Respondent and Interested Party.

3.  Subsequently, but before I had substantively dealt with the Applicant’s application for leave, the Removal Assessment and Litigation (Removal and Deportation) Section (1) of the Immigration Department faxed to the court a letter dated 19 September 2025, informing the court of a letter from the Applicant submitted to the said department on 5 September 2025.  In it, the Applicant said he “request to arrange my travel document and send me back to India as soon as possible I have no problem to go back India also my family is waiting for me next to home” (“Return Letter”).

4.  However, the Applicant had not explicitly indicated that he wished to withdraw his application for leave for judicial review, or that he no longer intended to proceed with and prosecute the said application.  The Return Letter was also dated only 2 days after the hearing had taken place.  I therefore directed that another oral hearing take place on 10 October 2025.

5.  At that hearing, the Applicant initially said he agreed with the contents of the Return Letter and that he wanted to go back to India as soon as possible.  However, he said that he wished to proceed with his application for leave to apply for judicial review.  When I asked him why, he then said that he had written the Return Letter out of fear that he would be detained by the Immigration Department and in order to “remain outside”, that he did not want to go back to India at present, and hence he wanted to continue with his application for leave.  He therefore asked me to disregard all of the contents of the Return Letter as they were untrue and confirmed not only that he did not agree with the contents of the Return Letter, but also that he did not want to go back to India.

6.  I have therefore proceeded to assess the merits of the Applicant’s leave application without regard to the contents of the Return Letter.  In doing so I have not seen the need to have, and hence have not had, regard to how the Applicant confirmed then disowned its contents.

Background

7.  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 refouled to India, he would be harmed or killed by his creditor due to his having defaulted on the repayment of a loan;

(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 15 November 2018 (“Director’s Decision”);

(3)   The Applicant appealed/petitioned to the TCAB/NRCPO. The latter issued the TCAB Decision on 30 June 2020, in which it found that none of the grounds for non-refoulement protection were made out and confirmed the Director’s Decision.

Legal Principles

8.  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).

9.  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).

10.  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

11.  The Applicant has not identified or set out any grounds of judicial review in the Form 86 or in the Affirmation.  There is hence 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.

12.  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.

13.  The decision-maker set out the Applicant’s background, immigration and procedural history, the grounds of non-refoulement relief, the nature of the appeal/petition, and why, having had regard to the leading decision in CACV 115/2013 (reported as ST v Betty Kwan [2014] 4 HKLRD 277), it had decided to deal with the case on the papers and without holding an oral hearing (Paragraphs 1 to 27).  He then went on to assess Torture Risk, concluding that it was not substantiated given, on the evidence, the low likelihood of future risk of harm if the Applicant were refouled, and as the evidence and COI indicated that reasonable state protection was available.  The claim as to BOR 3 Risk failed for the same reasons, while the claim as to Persecution Risk failed as no Refugee Convention reason was engaged.  As for BOR 2 Risk, this also failed given the lack of evidence of risk of harm from the Indian government.  Internal relocation was also considered to be reasonable.  Accordingly, the Applicant’s claims failed and the Director’s Decision was confirmed (Paragraphs 28 to 50).

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 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 the risk of harm and state protection, and the lack of a Refugee Convention reason.  Nor is there any public law basis to vitiate the decision-maker’s consequent conclusions regarding Torture Risk, BOR 3 Risk, and Persecution Risk.  While the TCAB/NRCPO appears to have taken too narrow a view of BOR 2 Risk, it is not reasonably arguable that it would have come to a different conclusion even if it had accepted that such could be engaged where the risk was posed by non-State actors and private persons given that the Applicant had failed to establish BOR 3 Risk, the underlying findings (in particular those relating to the risk of harm and state protection) relating to such, and the lack of any public law basis to vitiate such.  I therefore do not see that such issue, taken on its own, vitiates the TCAB Decision and justifies the grant of leave (see Kulwinder Kaur [2022] HKCA 49 at §§54-60, Sandhu Vinny [2022] HKCFI 2327 at §§24-26, [2023] HKCA 1261 at §§30, 32-33).

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

Conclusion

16.  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