BEGUM FIRDOUS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 790/2020

[2025] HKCFI 3961

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 790 of 2020

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 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.  Application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  The Applicant is a citizen of India. By a Form 86 dated and filed on 29 April 2020 (“Form 86”), and a supporting affirmation also dated and filed on 29 April 2020 (“the Affirmation”), she sought leave for judicial review of a decision dated 3 April 2020, which is one of the Torture Claims Appeal Board (“TCAB”)/Non-Refoulement Claims Petition Office (“NRCPO”) (“TCAB Decision”)[1].

2.  The Applicant sought an oral hearing of her application. A few days before the scheduled hearing, she applied by letter for the hearing to be adjourned to “like in November 2025” as she claimed that she suffered from “heart pain, abdominal pain, migraine everyday” and was hence unable to attend her hearing or answer questions. The letter attached what she said were “all my Following Up Medical Records”. I refused the application in writing as the attached documents did not indicate that she was medically unfit or unable to attend hearing as scheduled or on any dates between then and November 2025, and as they did not substantiate the assertions made in her letter. Moreover, the Discharge Summary (Nursing) slips all indicated that the Applicant’s mental state was “Orientated” and her Emotional Status was “Stable”.

3.  The Applicant appeared at the oral hearing and confirmed that she would like to proceed with it. She asked me to take into account her claims in relation to her medical condition and some other matters. I deal with such matters below.

4.  I have amended the Form 86 to properly identify the putative respondent and the putative interested party. I will use the abbreviations and definitions from the TCAB Decision unless otherwise specified herein.

Background

5.  This is set out in the TCAB Decision. I will not repeat the contents thereof, but in summary:

a.  The Applicant claims non-refoulement relief on the basis that if she were sent back to India, she would be harmed or killed by her husband;

b.  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 13 March 2018 (“Director’s Decision”);

c.  The Applicant then petitioned/appealed to the TCAB/NRCPO. A member/adjudicator held a hearing in relation to the Applicant’s non‑refoulement claims 10 December 2018, but could not finalise the decision. Subsequently the matter was reallocated to a different member/adjudicator who held a hearing on 20 December 2019. The Applicant attended that hearing and answered questions with the assistance of a Hindi interpreter; and

d.  The TCAB/NRCPO handed down the TCAB Decision on 3 April 2020 which found that the Applicant was not entitled to non-refoulement relief on any of the relevant bases, that the appeal/petition failed, and confirmed the Director’s Decision.

Legal Principles

6.  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).

7.  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).

8.  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

9.  As the Applicant has not identified or set out any grounds of judicial review in the Form 86 or Affirmation, there is 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.

10.  However, 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.

11.  The TCAB Decision set out the Applicant’s procedural and immigration history (Paragraphs 1 to 6) followed by the Applicant’s background and claims, and an outline of the Director’s Decision (Paragraphs 7 to 13). It then mentioned the four grounds for non-refoulement protection, and relevant case law and principles relating to burden, risk of harm, and credibility (Paragraphs 14 to 23).

12.  The decision-maker then explained that she accepted the Applicant’s factual claims that she had been subjected to domestic violence by her husband (Paragraphs 24 to 26). However, she did not accept that the Applicant faced a real risk of harm upon return given that she had access to sufficient and reasonable protection from her husband’s violence from the government and various NGOs, and given also her family’s financial circumstances. Hence none of the four relevant grounds were made out, the appeal failed, and the Director’s Decision was confirmed (Paragraphs 27 to 43).

13.  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. This is especially so as to the assessment, reasoning, and findings regarding the risk of harm and state protection, and consequently Torture Risk, Persecution Risk, BOR 3 Risk, and BOR 2 Risk, which are all matters primarily within the province of the decision-making body.

14.  As for the claim in the Affirmation that she cannot return to India as her “life is in danger”, this is a bare and unsubstantiated submission which is irrelevant and does not advance her case, given the findings in and my analysis of the TCAB Decision, and the nature of judicial review proceedings.

15.  At the oral hearing the Applicant asked me to take into account her medical condition (as set out in the medical documents that she had submitted), that it was “difficult” for her to get treatment in India for such and for unnamed mental health issues/depression that she claimed to have previously suffered in India due to her husband’s actions, and that there was no‑one in India to take care of her as her mother had passed away last year, so she would “prefer to stay in Hong Kong”. She sought to submit what she said would be a death certificate of her mother, and after the hearing submitted a document which appears to certify that a “Sayeeda Khatoon” had passed away on 3 September 2024 (“Death Certificate”). However, I do not see that the documents are admissible in relation to, or that those claims assist and/or are relevant to, her leave application:

a.  I do not accept that the Death Certificate relates to the Applicant’s mother. Not only is there is no indication from the document that it does so, but the Applicant’s mother had passed away by the time of the TCAB/NRCPO hearing, of which fact the decision-maker was clearly aware[6]. The Death Certificate is hence clearly inadmissible and irrelevant.

b.  There is no evidence before me to establish, and I do not accept, her bare and unparticularised allegations as to her past mental health issues/depression in India. In any event I do not see how her claims relating to such are relevant to or assist her leave application, given the decision-maker’s analysis and findings relating to the availability of protection (including counselling, and psychological and medical care), her other family members, and her family’s financial circumstances[7], and when judicial review is not a further avenue of appeal or for revisiting the assessment in the hope that the court may consider the matter afresh absent any legal error.

c.  While the medical documents indicate that the Applicant has since December 2024 faced some issues relating to her physical health (such as anaemia) and has been receiving treatment in relation thereto, they are inadmissible as I do not accept that they would probably have had an important influence on the result of the case[8]. Firstly, I do not see how they are related, or relevant, to her claim for non-refoulement relief, particularly when such ailments only arose more than seven years after she left India, and given also the nature thereof. Secondly, and in any event, I do not see how they fulfil the requirement given, again, the nature of such ailments, and the decision-maker’s analysis and findings mentioned in the sub-paragraph above. I also do not accept that her related claims are established or relevant given the above, and the nature of judicial review.

16.  There is hence no basis for the court to intervene by way of judicial review, and I am not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success.

Conclusion

17.  In the circumstances I have ordered that the application for leave to apply for judicial review be dismissed and made the other orders above.

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