JIVAN RAM 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.   Form 86 be amended on the court’s own motion that the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office be named as the Putative Respondent;

2.   The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 15 April 2021 (the “Form 86”), the Applicant sought leave to apply for judicial review (the “Leave Application”) against the decision of the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office (the “Board”) dated 30 March 2021 (the “Board’s Decision”).

2.  To properly name the proposed respondent, I make an order to amend the Form 86 accordingly on the court’s own motion.

3.  An oral hearing was requested by the Applicant. It took place before me on 23 December 2025 (the “Hearing”) and the Applicant attended in person.

Background

4.  The Applicant’s background, the basis and history of his claim and the arguments he advanced had been set out in details in the Board’s Decision, and it is not necessary for me to repeat the same here.  The hyperlink to the Board’s Decision is included below[1] for reference. In gist, the Applicant claims that, if he returns to India, he will be killed by a Younas Khan (also spelt as Yunus Khan or Yoonus Khan) and his associates (the “Adversaries”) for the Applicant’s support of a rival candidate in the 2018 Rajasthan Legislative Assembly election.

Discussion

5.  This type of leave application is intended to be a filtering process and elaborate reasons are not necessary, see Re Zunariyah [2018] HKCA 14, at §23.  Hence, I shall set out the brief reasons for my decision below.

6.  The applicable legal principles relating to this type of applications are well established.  The judicial review is not a further avenue of appeal. Though in non-refoulement cases, the Court will adopt a high standard of fairness to review the decision of the Board with anxious scrutiny due to the seriousness of the issue at hand, the Court should not usurp the role of the Board.  Assessment of evidence, country of origin information (“COI”) materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director).  The Court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board, see Nupur Mst v Director of Immigration [2018] HKCA 524, at §14.

7.  It is trite law that, an applicant, even if unrepresented, is required to properly identify the grounds of judicial review in the Form 86, and to fully and frankly disclose all material facts and potential legal answers, see: Ho Loy & Another v Director of Environmental Protection (HCAL 21/2015, 22 December 2016) per Chow J (as he was then) at §142. However, no proposed ground of review has been advanced in support of the Leave Application. 

8.  At the Hearing, the Applicant confirmed that he had nothing further to add.

9.  Notwithstanding the above, I have considered the Board’s Decision in detail.  I do not find any error of law, procedural unfairness or irrationality. The Board did not fail to take into account any relevant matters and it did not take into account irrelevant matters. 

10.  The Board’s Decision is comprehensive with adequate reasons provided for rejecting the Applicant’s non-refoulement claim.  In particular, I see no reason to interfere with its finding that there is no evidence of any real risk of serious harm (§§160-161). The Board was entitled to find the Applicant’s factual account to be incredible, given the serious deficiencies in material aspects of his evidence. For example, he had little knowledge of fundamental information concerning the Indian Congress Party that he claimed to support or the election which resulted in his alleged need to flee India in fear of his life (§§66-78, 130-131). His account of the alleged assault on him by the Adversaries was also inconsistent (§§130, 132).

11.  There is also no basis to believe that the Applicant will not have protection in his home country or that he cannot relocate to other parts of the country:-

(1)   On state protection, having considered COI, the Board is entitled to form the view that adequate state protection is available in India notwithstanding the existence of corruption and inefficiencies in the justice system (§§163-196).

(2)   On the availability of internal relocation alternatives, it is clear that, the Applicant, as an able-bodied adult with reasonable working skills as a stone-cutter, should have no difficulty relocating to large cities such as Mumbai or Delhi (§§197-202).

12.  In these circumstances, the Board’s Decision is not Wednesbury unreasonable or irrational. 

13.  In short, I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success.  Accordingly, I refuse to grant leave for judicial review.

Conclusion

14.  In the premises, I make an order that the Form 86 be amended as described above and 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