ALI IMTIAZ v. NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 764/2020

[2025] HKCFI 5319

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 764 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 oralsubmissionsby the Applicant in open court;

1.   The Form 86 is amended on the Court’s own motion, naming only the Non-Refoulement Claims Petition Office as the Putative Respondent, naming only the Director of Immigration as the Putative Interested Party, and by substituting “Non-Refoulement Claims Petition Office 19 March 2020” in place of the words “TCAB 19 MARCH 2020”; and

2.   The application for 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 24 April 2020 (“Form 86”), which was accompanied by a supporting Affirmation also dated and filed on 24 April 2020 (“the Affirmation”), the Applicant sought leave to apply for judicial review of a decision said by him to be one of the Torture Claims Appeal Board (“TCAB”) dated 19 March 2020. However, the relevant decision made on 19 March 2020, and exhibited to the Affirmation, was actually one of the Non-Refoulement Claims Petition Office (“NRCPO”) (“the NRCPO Decision”)[1].  I will use the abbreviations and definitions from the NRCPO Decision unless otherwise specified herein.

2.  The Applicant sought and attended the oral hearing of his application.  He made some oral submissions and sought to submit some documents in support of his leave application. I address such below.

3.  I have amended the Form 86 of my own motion to reflect the identity of the proper Putative Respondent and Putative Interested Party, and the nature of the NRCPO Decision.

Background

4.  This is set out in the TCAB Decision (defined below) and in the NRCPO Decision.  While I will not repeat the contents thereof, in summary and in relation to the assessment of his claim:

(1)  The Applicant originally claimed that if he were sent back to India, he would be harmed or killed by his creditor and former friend, Sunny, for failing to repay a loan to him;

(2)  The claim was initially assessed on the basis of Torture Risk[2] and was rejected by the Director of Immigration (“Director”) in a decision dated 12 April 2013 (“Director’s Decision”), and then subsequently by the TCAB in a decision dated 31 May 2013 (“TCAB Decision”)[3];

(3)  The claim for non-refoulment was subsequently assessed under the USM on grounds other than Torture Risk, namely BOR 2 Risk[4], BOR 3 Risk[5], and Persecution Risk[6], and was rejected by the Director in a decision dated 26 October 2018 (“Director’s Further Decision”);

(4)  The Applicant appealed/petitioned to the NRCPO, which held a hearing in relation to the Applicant’s non-refoulement claim on 6 December 2019; and

(5)  The NRCPO issued the NRCPO Decision on 19 March 2020, in which it found that the Applicant’s petition failed on all applicable grounds and confirmed the Director’s Further Decision.

Legal Principles

5.  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).

6.  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).

7.  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

8.  The Form 86 (and for that matter also the Affirmation) does not identify any grounds of judicial review. There is hence no allegation of procedural unfairness in relation to, and/or of any error of law in, and/or any irrationality/failure to meet the enhanced Wednesbury test in, the NRCPO Decision.

9.  Nevertheless, given the seriousness of the issues at hand, I have considered the NRCPO Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard and bearing in mind the need for a high standard of fairness.

10.  The NRCPO set out the Applicant’s background and his immigration and procedural history (including how he had the assistance of the DLS in relation to the submission of both the TCF dated 29 January 2013 and the SCF dated 3 September 2018, and at two interviews with staff of the Director on 19 March 2013 and 5 October 2018), the conduct of the hearing including reference to documents and the reminder given to the Appellant as to the importance of his testimony, and the three relevant grounds under the USM with relevant principles in relation thereto (Paragraphs 1 to 18).

11.  The decision-maker then outlined the Applicant’s factual case in detail (Paragraphs 19 to 32), and the relevant principles as to establishing risk, with regard to the burden and standard of proof, and the approach followed as to assessment of credibility and evidence (Paragraphs 33 to 44).

12.  The NRCPO then outlined its conclusions that, having taken into account the relevant guidance as to assessment of credibility and the possible serious consequences to the Applicant if the wrong decision were made (i) Nothing of what the Applicant had told the NRCPO or presented in evidence relating to the business, the loan, or the assaults upon him by Sunny and his associates could be relied on; and (ii) In particular, no reliance could be placed on the claims that if the Applicant were refouled to India, Sunny and his associates would harm or kill him (Paragraphs 45 to 46). At Paragraphs 47 to 83 it then set out its analysis (incorporating salient reasons) of the facts and evidence before it, and its conclusions that:

(1)  It did not find the Applicant’s account of his friendship with Sunny, and the allegation that Sunny had in 2014 switched his allegiance from the CPI(M), to the BJP, to be plausible (Paragraphs 54 to 59, 74 to 75);

(2)  It did not find the Applicant’s account of Sunny’s visits to his home and threats to the Applicant’s mother to be credible (Paragraphs 47 to 49, and 66 to 69);

(3)  It did not find any aspect of the Applicant’s account of his shoe-selling business to be credible (Paragraphs 50 to 53, and 70 to 73);

(4)  It did not find the Applicant’s account that he had fled from Sunny within India, and in particular that while in Delhi and Mumbai he was seen by people known to Sunny or that he had to move from place to place to avoid detection, to be credible (Paragraphs 62 to 64 and 77 to 79, also the Director’s Further Decision Paragraphs 9.19 and 9.20); and

(5)  It did not find the Applicant’s claim that he would be at risk because he was a Muslim to be credible (Paragraphs 65, and 80 to 81).

The NRCPO also found that on the evidence that even if Sunny existed, he would have no reason to attack the Applicant and there was no credible evidence that he had done so, given its findings at (1) to (3) above and his failure to produce a medical report on the alleged assault (Paragraphs 60 to 61, and 76). There was hence on the evidence no real risk that the Applicant would be harmed or killed if he returned to live at his family home in Kolkata, alternatively he could return to live with one of his sisters who lived in Patna or Banaras, or elsewhere in West Bengal (Paragraphs 82 to 83).

13.  Given such, the NRCPO unsurprisingly found that the Applicant had failed to establish any of the four types of risk relied on. It also found that on the evidence, he could relocate without undue hardship to Patna, Banaras, or elsewhere in West Bengal. Accordingly, the appeal/petition failed and the Director’s Decision was confirmed (Paragraphs 84 to 90).

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 NRCPO Decision or justify the grant of leave.  This is especially so as to the assessment, reasoning, and findings regarding the evidence, credibility, risk of harm, and internal relocation, which are matters primarily within the province of the decision-making body.  Nor is there any public law basis to vitiate the decision-maker’s conclusions regarding Torture Risk, Persecution Risk, BOR 3 Risk, and BOR 2 Risk.

15.  At the hearing of the leave application on 9 June 2025, the Applicant said he wished to submit further documents which he said were created after the NRCPO hearing, namely a police report that had been filed by his mother regarding threats from Sunny to against her as made at her residence, and some other unknown documents which contents and details he was unable to describe. He claimed that despite his having known about “these kind of incidents happening” in the four to six months prior to the hearing, he did not have copies as his mother was apparently now living alone (as his siblings were, he said, living elsewhere due to “fear of those enemies”), she had bad eyesight and he needed to ask his neighbours to help his mother to get documents or access anything, and as he had been not sure when the hearing would take place. He said that her report could be in Urdu or Bengali and that he needed 2 months to submit such documents.

16.  At that point the Court of Appeal had not handed down Chidomere Christian Okechukwu v TCAB/NRCPO [2025] HKCA 694 in which it was conclusively clarified that (contrary to the approach which had been taken in several first instance decisions[7]) the criteria in Ladd v Marshall [1954] 1 WLR 1489 do not apply where an applicant seeks to admit new evidence in relation to applications for leave to apply for judicial review. Since such documents would have allegedly arisen post-NRCPO hearing, I hence ordered that the Applicant file an affirmation on or before 4 August 2025 exhibiting only his mother’s complaint as referred to at the hearing with a certified English translation thereof (which document, as I explained to him, I would assess the relevance, admissibility, and weight thereof) and adjourned the hearing to 11 August 2025 so that he could address me on matters of relevance, weight, and admissibility. I also explained to him that I had not allowed him to exhibit the other alleged documents as he could not even explain what they were.

17.  Before the resumed hearing the Applicant filed a handwritten affirmation in English without a translation clause (“2^nd Affirmation”) to which he exhibited a handwritten letter in English with no translation clause (“the Letter”), a one-page document in English (“the Alleged Report”), and three documents apparently relating to someone’s eyes (“the Eye Documents”). In the Letter the Applicant alleged, as he had done in the evidence considered by the NRCPO, that Sunny was a BJP member[8]. He did not, however, refer to or provide any supporting documentation. He also sought to submit the Alleged Report, which he claimed was made by his mother, and claimed that she had wanted to make a police report but “several times the police doesn’t want to make the report against him. After a several time try and struggle my mother succeeded to submitted the complaint against him”, that Sunny still threatened his family to look for him, his mother wanted to “save his family members from all the attackers and she had been Admitted on(sic) the eys(sic) hospital”.

18.  At the resumed hearing, the Applicant claimed that his mother had told him not to go back as he might be harassed and killed by his enemy in India and his life was in danger.

19.  I do not see that the Alleged Report and the Eye Documents are admissible, relevant, or that they should be given any weight, in relation to the present proceedings. Nor do I consider that the contents of the Letter or the Applicant’s oral submissions are relevant to, or assist, the leave application:

(1)  The Alleged Report, as submitted, is of such poor quality that none of its month on the top-right hand corner (being apparently, from a portion of its other legible contents, part of the date on which Sunny had allegedly visited the report-maker’s house), its alleged addressee, and the alleged recipient in (and identity of the signatory within) a “RECEIVED” stamp can be adequately discerned[9]. Other portions of its contents on the left-hand side (including the full identity of the person and entity to whom it was apparently addressed) are also not legible. The Eye Documents are of even worse quality. Other than they apparently relate to someone named “Rashiya” (whose following name apparently starts with the letters “Kh”) who appears to have been 65 years old in 2023, it is not possible to discern exactly what eye or health issues (if any) they relate to or how they arose. I do not see that it is appropriate for the Applicant to ask the court to speculate as to the documents’ remaining and full contents given the lengthy period I gave to him, and the lack of any explanation for their dire quality.

(2)  With that said, what is clear from the Alleged Report is that the document was apparently made and signed by someone named “Rashia Khatoon”, whereas the Applicant had in both his TCF and SCF[10] stated his mother’s name as “Rasia Begum”[11]. No explanation has been given for this discrepancy. Moreover, the date in the “RECEIVED” stamp appears to be “24.06.25” which is after the date of the hearing on 9 June 2025, by which time the Applicant had claimed to me that his mother had already filed a police report. Hence, not only is the Alleged Report not the document which I had directed be exhibited, but also and in any event on the evidence I do not see or accept that it was a document actually made by, and submitted to the Police by, the Applicant’s mother. I also do not accept that the Eye Documents (which are also not what I had directed be exhibited) relate to the Applicant’s mother or prove that she had suffered from some sort of eye condition.

(3)  In any case, even if I were to take the Applicant’s case in relation to the Alleged Report and Eye Documents at its highest[12], I do not see that they are admissible, relevant to, or assist the present leave application. Nor is the leave application assisted by the Applicant’s claims as made in the Letter and/or orally:

i.   The purpose of judicial review is not to provide a further avenue of appeal, and/or an avenue for revisiting the assessment in the hope that the court may consider the matter afresh absent any legal error (see the authorities and principles in paragraph 6 above, in particular Nupur Mst, supra and Lakhwinder Singh, supra). The Alleged Report and Eye Documents do not show the nature of the material before the decision-making body, determine a fact upon which jurisdiction depended or whether essential procedural requirements were observed, prove any alleged misconduct such as bias, or demonstrate that the decision-maker in reaching the NRCPO Decision ignored or was plainly wrong as to a material fact (see R v Secretary of State for the Environment, ex p Powis [1981] 1 WLR 574 (CA), Nguyen Ho & ors. v Director of Immigration & anor. [1991] 1 HKLR 576 at 579, 582H-583I).

ii.   I also do not see that the NRCPO had any positive duty to elicit materials such as the Alleged Report and Eye Documents of its own volition, and I therefore do not accept that the Applicant can rely on them in these proceedings (Nupur Mst, supra, at §14(5)). After all, the Applicant was legally assisted in relation to the TCF, SCF, both of his Interviews, and had ample opportunity to raise, and provide evidence to support, his claims as to Sunny’s involvement in politics and harassment of the Applicant’s mother at her home. Nor is there any evidence of any complaint before or to the NRCPO of difficulties encountered or anticipated in obtaining supporting documents and evidence relevant to such claims, which claims were accordingly considered and dealt with in the NRCPO Decision (see paragraphs 12(1) and (2) above).

iii.   If and insofar as the Applicant seeks to claim that there has in fact been a significant change of circumstances or new information relevant to his non-refoulement claim, that may be relevant to the potential procedure in ss. 37ZO and 37ZP Immigration Ordinance (Cap 115), but it is not relevant to the present application (Amandeep Kumar v Torture Claims Appeal Board [2019] HKCA 1369 at §13; Poinem v Torture Claims Appeal Board [2020] HKCA 911 at §15).

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

Conclusion

21.  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