MOHAMMED KHAJA PASHA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2281/2019

[2025] HKCFI 220

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2281 of 2019

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.  Leave to the applicant to withdraw the Leave Application; and

2.  The Leave Application be dismissed.

Observations for the Applicant:

Introduction

1.  By prescribed Form 86 filed on 9 August 2019, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 28 June 2019 (“Board's Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 15 November 2017 (“Director’s Decision”) rejecting the applicant's non-refoulement claim.

2.  As the applicant had requested for a hearing of the Leave Application, this court held a hearing on 10 December 2024. The applicant attended in person.

Background

3.  The background as taken from the respective decisions of the Director and the Board referred to above can be briefly stated as follows.

4.  The applicant is a national of India. He came to Hong Kong on 24 December 2015 as a visitor and was allowed to stay until 7 January 2016. Upon the expiry of his visa, he overstayed. On 11 January 2016, he surrendered himself to the Immigration Department. On 19 February 2016, the applicant lodged a non-refoulement claim, and the applicant’s case was considered under all applicable grounds - the risk of torture[1], BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4] under the USM.[5] The claim was based on a fear that if refouled, he would be harmed or killed by members and supporters of a political party, Bharatiya Janata party (“BJP”) (which was against Muslims and beef eating) after the applicant, as a Muslim, had supplied beef to a Beef Festival in December 2015.

5.  In the Director’s Decision, the Director decided against the applicant’s claim on all applicable grounds. The Director assessed the claimed risk of ill-treatment to have been low and there was no evidence suggesting that the government was involved in the incidents of the alleged threat by the members of BJP. After having considered the country of origin information reports (“COI”), the Director was satisfied that state protection was available and that internal relocation alternatives were available and reasonable. Hence, the applicant’s appeal to the Board against the Director’s Decision.

6.  On 6 June 2018, the applicant attended a hearing with the Board. The applicant told the Board events that had taken place, and accepted that there could be innocent mistakes over timing or the sequence of events. The Board further considered the applicant’s reports in relation to BJP. In the Board’s Decision, the Board found that there were no issues with the applicant’s credibility, but considered that the real issue was whether the applicant’s life was genuinely at risk in the way the applicant claimed. The Board concluded that there was no genuine threat to the applicant and in any event, it would not be unreasonable for the applicant to live elsewhere in India away from the area he previously lived. The Board found that the applicant’s appeal failed on all applicable grounds.

Legal principles applicable to judicial review

7.  As the Courts have repeatedly stated, determination of the merits of a non-refoulement claim is essentially a matter for the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them. A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error. A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

Discussion and conclusion

8.  The applicant’s Form 86 did not contain any grounds for seeking relief. In his supporting affirmation of the same date, he exhibited a copy of the Board’s Decision and deposed that the Board was in breach of procedural fairness without condescending to particulars.

9.  The Board’s Decision was arrived at after having examined the applicant’s evidence in great detail. It found that the applicant’s account did not amount to any threat or risk and that even if there were any threat, the applicant would have the option of internal relocation. These are findings of fact, which the court in a judicial review will not interfere with.

10.  Having rigorously examined the Board’s Decision with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles relating to all the grounds mentioned above; correctly identified the issues, and observed a very high standard of fairness in the Decisions of the Director and the Board. I find that it was perfectly open to the Board to come to its conclusion that the applicant failed to discharge his burden of proving the asserted fears and risks.

11.  For these reasons, I am not satisfied that the Leave Application is reasonably arguable with realistic prospects of success such that would enable this court to grant leave: see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

Withdrawal of Leave Application

12.  At the hearing, the applicant informed this court that it was now safe for him to return to India and he had in fact been back home 3 times. He wanted to withdraw the Leave Application. The applicant was therefore asked to confirm his withdrawal under oath. The applicant affirmed that he was issued a Hong Kong Identity Card in 2021 after he got married to a Hong Kong resident in July 2019.

13.  Apart from the application to withdraw the Leave Application, there is nothing outstanding in this action. In the circumstances, I should grant leave to the applicant to withdraw the Leave Application, and hereby order the dismissal of the Leave Application: see Re Manik Md Mahamudun Nabi [2022] HKCA 471.

Orders

14.  Leave to the applicant to withdraw the Leave Application.

15.  The Leave Application 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