NAZIR MD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2843/2019

[2025] HKCFI 3429

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2843 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.   The Form 86 be amended to include the Board’s 2^nd Decision on the court’s own motion.

2.   There should be no extension of time to file the application for leave to apply for judicial review in respect of the Board’s 1^st Decision.

3.   The application for leave to apply for judicial review in respect of the Board’s 1^st Decision be dismissed.

4.   Leave is granted to the applicant to issue a judicial review application against the Board’s 2^nd Decision.

5.   The applicant shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.

Observations for the Applicant:         

Introduction

1.  By a “Notice for leave to apply for judicial review” in the prescribed Form 86 filed on 27 September 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 March 2017 (“Board’s 1^st Decision”)   dismissing the applicant's appeal against the decision of the Director of Immigration (“Director”) dated 9 February 2015 (“Director’s 1^st Decision”) rejecting the applicant's non-refoulement claim.

2.  After the Board’s 1^st Decision, on 30 August 2019, the Board delivered a second decision (“Board’s 2^nd Decision”) dismissing the Director’s second decision dated 2 May 2017 (“Director’s 2^nd Decision”).  According to the Form 86, the Board’s 2^nd Decision is not the subject matter of the Leave Application.

3.  Except the BOR 2 risk^[1], the applicant’s claim was first considered under all the applicable grounds of risk of torture^[2], BOR 3 risk^[3] and persecution risk^[4] under the USM^[5] in the Director’s 1^st Decision and the Board’s 1^st Decision. The BOR 2 risk ground was dealt with in the Director’s 2^nd Decision and the Board’s 2^nd Decision. The claim was based on a fear that if refouled, he would be harmed or killed by five unknown men, whom were believed to have connection with a political party known to the applicant as CPIM, after the applicant refused to pay them more extortion money.

4.  At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 10 June 2025.  The applicant attended the hearing in person.  After having heard from him, this court informed him that the decision would be reserved, and be sent to his updated address.

Background

5.  The background as taken from Director’s Decision and the Board’s Decision can be briefly stated as follows.

6.  The applicant is a national of India.  He was arrested by police on 1 November 2007 and was referred to the Immigration Department on 3 November 2017.  Upon enquiry, he claimed that he entered Hong Kong from Mainland China by boat without permission on 5 February 2007.  The applicant raised a torture claim dated 17 November 2007, which the Director treated as a non-refoulement claim.

7.  According to the applicant, in February 2001, he commenced his garment business in Kolkata. Shortly after, the unknown men started to extort money from him regularly every two months whenever he was in India.  Initially, the applicant paid the extortion money. However, the unknown men gradually extorted more and more money from the applicant.  In around 2004, a security guard near the airport told the applicant that the five unknown men were connected to the CPIM and advised him to give in to the men’s demands for the sake of the applicant’s safety.

8.  On 9 January 2007, the applicant refused to heed to the demand of the unknown men, who then threatened the applicant with a knife, two shaving blades and a metal rod. They only left after the applicant had paid them.

9.  On 11 January 2007, the five unknown men extorted money from the applicant again. When the applicant refused to pay, they cut the applicant’s left arm with a shaving blade, beat him on the back with a metal rod, and kicked him when he fell on the ground.  He took a metal rod to defend himself and hit one of the men.  The assault lasted for about half an hour.

10.  The applicant did not receive any medical treatment in clinics or hospitals, but treated his wound by applying snake lime to the wound.  The applicant was scared and did not report the assault to the authorities because he had fought back with the five unknown men.  He decided that it was not safe for him to stay in India, and departed from India on 14 January 2007.

11.  In the Director’s 1^st Decision, the Director decided against the applicant’s claim on all applicable grounds.  Hence, the applicant’s appeals to the Board.

12.  On 5 July 2016, the applicant attended a hearing before the Board for his appeal to the Board against the Director’s 1^st Decision. At the Board hearing, the applicant stated that whatever he had said had already been said and he had nothing further to submit.

13.  In the Board’s 1^st Decision, the Board found that the applicant had exaggerated his fear of the unknown men, and found that the applicant failed to support his claim for non-refoulment.  The Board set out 8 reasons for its rejection of the applicant’s claim. One of the reasons stated was that there was only one occasion (11 January 2007) the applicant had been injured and that the wound was not serious. Hence, the Board found that the ill-treatment the applicant experienced did not attain a minimum level of severity. The Board also took into account of the applicant’s delay of 9 months in seeking protection, and he only did so after his arrest by the police. After the Board considered the extensive COI, it found that state protection would be available, and that internal relocation would be viable.

Legal principles applicable to judicial review

14.  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

The applicant’s grounds

15.  In his Form 86, the applicant raised the following grounds for judicial review: 

(a)  The Board’s Decision was unreasonable and unfair, while the right to life is protected under Article 28 of the Basic Law and Article 2 of the Bill of Rights;

(b)  Insufficient importance or weight was given to state acquiescence;

(c)  Though the Director listed relevant country of origin information (“COI”) that supported the applicant’s belief that the police in his country would not be able to protect him, such COI was not considered or given enough weight;

(d)  The Director showed an unfair attitude, and failed to meet the required high standards of fairness.

16.  However, the applicant did not provide any particulars for these grounds.

17.  At the hearing, this court asked the applicant whether he had any further grounds he wished to submit in support of the Leave Application.  The applicant said that he had nothing further to add.

Whether the court should also consider the Board’s 2^nd Decision

18.  As stated in [2] above, the applicant’s Form 86 only referred to the Board’s 1^st Decision dated 28 March 2017 without referring to the Board’s 2^nd Decision. However, it is noted from the applicant’s proposed grounds for the judicial review set out in the Form 86, the applicant alluded to “Article 2 of the Hong Kong Bill of Rights”  (see [15(a)] above) as his first ground. This would seem to suggest that the applicant also sought relief in respect of the Board’s 2^nd Decision.  It is therefore capable of being read as referring to both the Board’s 1^st and 2^nd Decisions in the Leave Application: see Re Kamaljeet Singh [2023] HKCA 1195 at [10] & [32]).

19.  Before this Court decided whether Form 86 should also include the Board’s 2^nd Decision, I tried to clarify from the applicant at the hearing his real intention for his intended challenge.  

20.  Unfortunately, the applicant was incapable of clarifying his intention at the hearing.  He stated that he knew about the Board’s 2^nd Decision, and that his friend helped him write an acknowledgement of the Board’s 2^nd Decision, but had not applied for judicial review against it. He then mentioned that he went to the Castle Peak Bay Immigration Center (“CIC”) with a letter.

21.  Despite much effort, I was not able to establish whether he had wanted to judicially review the Board’s 2^nd Decision or not. 

22.  In the circumstances, I believe that I should apply high standards of fairness by including the Board’s 2^nd Decision for the purpose of the Leave Application. I should therefore order the amendment of the Form 86 to include the Board’s 2^nd Decision.

Board’s 1^st Decision

23.  It is plain that the applicant has not condescended to any particulars, in the Form 86 or otherwise, as to what basis the Board is said to have acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.  The applicant’s written grounds are mostly unrelated to the Board or vague. Neither was the applicant able to advance any grounds at the hearing.

24.  The Board’s Decision was arrived at after having carefully examined the applicant’s evidence with reference to the applicable law.  Its conclusion that there was no real risk of harm under any of the grounds for non-refoulement was based on the Board’s consideration of all the evidence.  These are findings of fact, which the court in a judicial review will not interfere with.

25.  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 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.

26.  Additionally, there is also a problem of delay. Pursuant to O 53 r 4(1) of the Rules of the High Court, an application to apply for judicial review shall be made promptly and in any event within 3 months from the date when grounds for the application first arose. Hence, the deadline for the filing of the Leave Applicant in respect of the Board’s 1^st Decision had expired on 28 June 2017. The Leave Application is late for about 2 years and 3 months.   

27.  Before considering whether I should exercise my discretion for an extension of time, I should have regard to, among others,  (i) the length of the delay; (ii) the reason for the delay; and (iii) the prospect of success of the intended challenge.  The delay is significant. The applicant shall be required to provide good reason for the delay.

28.  According to the applicant’s explanation given at the hearing, he said he could not remember what happened.  He stated that he issued the Leave Application in 2019 during his 30-day detention in CIC after an immigration officer told him that his case was finished. He was not able to state whether he had received the Board’s 1^st Decision or not. All he said was that he was not an educated man and did not know anything about legal matters.

29.  The delay is substantial and inordinate. Whilst I accept that the applicant was not an educated man and probably be ignorant of the law, I am not satisfied with the applicant’s explanation for the delay. The outcome of a Board’s decision must have been a very important matter to the applicant. His explanation that he could not even remember if he had received and read the Board’s 1^st Decision does not strike me as logical. His given reason for the issuing of the Leave Application in 2019 also suggests that the Leave Application was to help him get out of the detention. He did not genuinely intend to challenge the Board’s 1^st Decision. Having taking into consideration of the little prospect of success of the intended challenge against the Board’s 1^st Decision, I am disinclined to allow the extension of time.

Board’s 2^nd Decision

30.  After the Board’s 1^st Decision, on 13 April 2017, the Director invited the applicant to submit additional facts, which he considered relevant to his non-refoulement claim on all applicable grounds, including the ground on BOR 2 risk.  When the Director did not receive any reply from the applicant, the Director went on to assess the BOR 2 risk ground.  By the Director’s 2^nd Decision, the Director decided that the applicant failed to establish any BOR 2 risk. Hence, the applicant’s appeal to the Board.

31.  The applicant’s appeal was dealt with by the same constituted Board on paper.  Apart from stating in his letter that his life was still in danger if he were refouled, the applicant did not provide any additional information or facts in relation to the BOR 2 risk. The Board rejected the applicant’s appeal for the reason that the applicant’s assertion of his life was at risk had been determined and dismissed by the immigration officer and the Board.  It stated that it was res judicata and cannot be reopened.

32.  Like the present case, Re Kamaljeet Singh (supra.) was also concerned with two decisions of the Director and two decisions of the Board, the first was in respect of BOR 3 risk, torture risk and persecution risk; and the second one, BOR 2 risk.  In that case, the Court of Appeal held that the issue of BOR 2 risk was different from the questions of BOR 3 risk, torture and persecution risk. The Court there held that the Board was not precluded by res judicata and should have independently assessed the relevant risk. The Court of Appeal held that the Board’s dismissal of the second appeal on the ground of res judicata was erroneous in law.

33.  The Board’s 2^nd Decision seems to have made the similar error found by the Court of Appeal in Re Kamaljeet Singh.

34.  Additionally, the Board’s conclusion that as the applicant had not supplied additional information or facts on BOR 2 risk, there was nothing to appeal against in the Director’s 2^nd Decision also seems to have fallen into error. Assessment of BOR 2 risk entails, among other things, separate consideration of the relevant risk. By merely relying on the previous adverse findings made in the Director’s 1^st Decision and the Board’s 1^st Decision, the Board would seem to have not applied the high standards of fairness requiring it to properly and separately assess each types of the relevant risks.

35.  Thus for the reasons above, it is reasonably arguable that the Board’s 2^nd Decision is erroneous in law, unreasonable, tainted by procedural unfairness and does not meet the required high standards of fairness.

Conclusion

36.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness in respect of the Board’s 1^st Decision. The Board is entitled to make a finding of the lack of real risk of harm.  The applicant has not provided any grounds in support of the Leave Application either on paper or at the hearing. All in all, the applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision.  The applicant’s intended challenge to the Board’s 1^st Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[6]

37.  For the Board’s 2^nd Decision, for all the given reasons, I am of the view that the applicant’s Leave Application in respect of the Board’s 2^nd Decision is reasonably arguable on those grounds stated above, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

Orders

38.  The Form 86 be amended to include the Board’s 2nd Decision on the court’s own motion.

39.  There should be no extension of time to file the application for leave to apply for judicial review in respect of the Board’s 1^st Decision.

40.  The application for leave to apply for judicial review in respect of the Board’s 1st Decision be dismissed.

41.  Leave is granted to the applicant to issue a judicial review application                 against the Board’s 2^nd Decision.

42.  The applicant shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.

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