MOHAMMED MUNNA alias NIAZ ALAM 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.   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 naming only the Director of Immigration as the Putative Interested Party; and

2.   The 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 filed on 15 July 2020 (“Form 86”), which was accompanied by a supporting Affirmation also filed on 15 July 2020 (“the Affirmation”), the Applicant sought leave to apply for judicial review of a decision of the Torture Claims Appeal Board (“TCAB”)/Non-Refoulement Claims Petition Office (“NRCPO”) made on 1 June 2020 (“the TCAB Decision”)[1].

2.  The Applicant sought an oral hearing of his application, and appeared at that scheduled for 3 September 2025.  He made some submissions, which I have set out below.

3.  I have amended the Form 86 of my own motion to reflect the identities of the proper Putative Respondent and Putative Interested Party. I will use the abbreviations and definitions from the TCAB Decision unless otherwise specified herein.

Background

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

(1)   The Applicant claimed non-refoulement relief on the basis that if he were sent back to India, he would be harmed or killed by his creditor, Shafi;

(2)   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 20 April 2018 (“Director’s Decision”);

(3)   The Applicant appealed/petitioned to the TCAB/NRCPO, which held a hearing on 13 November 2019 at which the Applicant gave evidence with the assistance of an interpreter.  The decision-maker then issued the TCAB Decision dated 1 June 2020, in which he found that the Applicant had failed to establish a claim for non-refoulement protection under any of the four grounds, and confirmed the Director’s 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 2012, 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 (Peter 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 the Affirmation do not contain any grounds of judicial review. There is hence no allegation of 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.

9.  Nevertheless, 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.

10.  The TCAB/NRCPO set out the Applicant’s procedural and immigration history, the nature of his claim, background, allegations, views on relocation and state protection, documents in support of the claim, and the conduct of the hearing (Paragraphs 1 to 31).  It then identified the salient issue and principles as to the assessment of evidence, including as to the burden and standard of proof (Paragraphs 32 to 42).

11.  The decision-maker then assessed Torture Risk and found (taking into account the evidence, and where relevant appropriate COI) that the past treatment did not amount to torture, it was mere speculation that Shafi and his men had a real intention to seriously harm or kill the Applicant, there was no acquiescence or failure of due diligence, state protection was available, and that internal relocation to (for example) Delhi or Mumbai was available and reasonable.  Accordingly, Torture Risk was not established.  Both BOR 2 Risk and BOR 3 Risk were also rejected given the lack of risk of harm.  Persecution Risk was also rejected, with the TCAB/NRCPO identifying inter alia the lack of a Refugee Convention Reason and the availability of state protection.  Accordingly, the claims for non-refoulement protection failed and the Director’s Decision was confirmed (Paragraphs 43 to 99).

12.  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 and justify the grant of leave.  This is especially so given the assessment, reasoning, and findings regarding the Applicant’s evidence, risk of harm, state protection, and internal relocation, all of which were and are matters primarily within the province of the decision-making body.  Nor is there any public law basis to vitiate the decision-maker’s consequent conclusions regarding Torture Risk, BOR 3 Risk, BOR 2 Risk, and Persecution Risk.  As to the last of these, while there may be an argument (per Sarkar v TCAB [2021] 5 HKC 237 (CA) at §§24, 53-57) that the TCAB/NRCPO had wrongly equated the threshold for Persecution Risk with that for BOR 3 Risk, there is no public law basis to disturb the findings regarding the lack of a Refugee Convention reason, state protection, and internal relocation, and hence the overall failure to establish Persecution Risk.

13.  At the hearing before me the Applicant said that he was waiting for surgery of some sort on some undetermined date, and sought to submit a referral letter to QEH’s Cardiology Clinic dated 29 December 2023 referring him for chest pain.  He also said he wished to submit another document from Kwong Wah Hospital relating to another, stomach-related surgery.  He admitted that once the surgeries had taken place then he would be happy to go back to India so that he could be “fit in order to foresee” any problems that might arise on his return.  After the hearing, he filed an affirmation exhibiting a referral letter, relating to a hernia, from the A&E Department of the Kwong Wah Hospital to the Department of Surgery dated 9 September 2025.

14.  I do not see how any of those documents or such claims assist the leave application given the findings in and my aforesaid analysis of the TCAB Decision, the nature of judicial review proceedings which are not meant to provide a further avenue of appeal, the lack of any indication or suggestion that such health condition(s) was/were in any way relevant to (let alone existed before the determination by the TCAB/NRCPO of) the claim for non-refoulement relief below, and as the Court of Appeal has, since the hearing, clarified that the Ladd v Marshall [1954] 1 WLR 1489 conditions do not apply in relation to applications for leave to apply for judicial review (Chidomere Christian Okechukwu v TCAB [2025] HKCA 694).

15.  I am not therefore not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success, or that there is any basis for the court to intervene by judicial review.

Conclusion

16.  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