ARUMUGAM SELVARAJ v. TORTURE CLAIMS APPEAL BOARD

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

1.  The applicant’s application to withdraw the application for leave to apply for judicial review be refused.

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

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated and filed on 30 December 2024, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 13 December 2024 (“the Board’s Decision”).  The Board’s Decision can be viewed in the following hyperlink:

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2024/HCAL002647_2024_files/the_Board's_Decision.pdf

2.  The Board found that the applicant had failed to demonstrate that he was entitled to non-refoulement protection in Hong Kong on all the applicable grounds under the Unified Screening Mechanism (“the USM”).  Hence, the Board dismissed the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 14 October 2024 and confirmed the same.

The applicant’s case

3.  It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

4.  In sum, the applicant claimed for non-refoulement protection because if refouled to India, he would be harmed or killed by a man named Murthi and his family members due to the applicant’s refusal of Murthi’s request to build a new road on the applicant’s land for access to Murthi’s plot of land.  

Withdrawal of the Leave Application

5.  Before the Leave Application was dealt with, the applicant filed an ex parte application by way of his affirmation dated 30 October 2025 to withdraw the Leave Application.  However, the applicant did not state that it was safe for him to return to his home country or that his problem in his home country had been solved.

6.  There is no evidence to show that the applicant made the above withdrawal application other than out of his own volition.  With the withdrawal application, it is clear that the applicant no longer wishes to proceed with the Leave Application or any oral hearing of the Leave Application, even though he had requested one previously.

7.  However, the Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 that:-

“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

8.  Thus, it is not right to leave the action at large by granting leave to withdraw to the applicant.  This court will proceed to deal with the merits of the Leave Application.

Grounds for judicial review

9.  The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

10.  In a document titled “GROUNDS ON WHICH RELIEF IS SOUGHT” which was annexed to his Form 86, the applicant advanced some general grounds which were not specific to his own case.

11.  The relevant parts of the said document are reproduced as follows:-

“1. The Respondent is in breach of procedural fairness in the following parts:

(1) the Respondent had unlawfully fettered his discretion by refusing the applicant’s appeal on the grounds that they did not satisfy the requirement.

(2) the Adjudicator acted in a procedurally unfair manner in dealing with the Applicant’s appeal;

(3) the Respondent’s decisions to refuse the Applicant’s appeal were unreasonable or irrational in the public law sense or are a result of procedural errors or unfairness.

(4) the Respondent failed to meet the greater care and duty owed to a self-represented claimant;

…

6. The Applicant believes he was not given a fair opportunity to keep forward his submissions in an oral hearing nor he was invited to submit written submissions. When the Applicant filled in the Appeal Form, the Applicant was only asked to write grounds for appeal but that will not count as an opportunity to reply to submissions made by the representatives of the Director of Immigration.

7. Furthermore, the Torture Claims Appeal Board has significantly relied on the source of news which is not officially recognized or it is simply hearsay. They have also relied on some cases which are fairly outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations that it is safe for him to return back to his country of origin.

8. If you needed some unsuccessful JR grounds, I would suggest that the credibility finding was unreasonable due to

(a) failure to give sufficient weight to documentary evidence (newspaper articles about incidents involving family); and

(b) failure to properly consider how the stroke affected the appellant’s memory (although memory not mentioned in medical report, raised by him).

…”

12.  In his supporting affirmation dated 30 December 2024, the applicant asserted the same grounds as stated in paragraphs 6 and 7 of the grounds quoted above.

Discussion

13.  Most of the grounds raised by the applicant are very general, vague and without any specificity.  The applicant failed to elaborate on any of the grounds.

14.  From what the applicant has written, it seems that the applicant is alleging that:-

(1) there was no oral hearing before the Board;

(2)  the applicant was not invited by the Board to submit written submissions and evidence;

(3) the Board relied on unofficial source of news, hearsay and outdated cases as country of origin information (“COI”);  and

(4) the Board failed to properly consider how the stroke affected the appellant’s memory.

15.  First of all, it is not true that there was no oral hearing before the Board.  The Board held an oral hearing on 29 November 2024 to assess the applicant’s appeal/petition and the applicant appeared in person.

16.  Thus, contrary to what the applicant alleged, he was given the chance to present his case and grounds of appeal to the Board in person at the oral hearing.  This court notes from the Board’s Decision that the applicant did answer the Board’s questions.  Thus, there is absolutely no basis for him to accuse the Board for failing to give him a fair opportunity to keep forward his submissions in an oral hearing.

17.  The applicant alleged that the Board did not invite him to give written submissions and evidence.  However, the applicant sought his non-refoulement claim by lodging his written signification on 9 August 2024 and submitted a Non-refoulement Claim Form dated 7 September 2024, which was completed with the assistance of the Duty Lawyer Service and gave details of his case.  The fact that the Board found the applicant failed to demonstrate that he was entitled to non-refoulement protection in Hong Kong does not mean that the applicant was deprived of the chance to submit evidence.

18.  If the applicant did have further written submissions or evidence to submit to the Board, he could have done so at the oral hearing before the Board. It is the applicant’s duty to establish his claims before the Board and he should present whatever evidence and submissions, written or oral, so as to satisfy the Board that he is entitled to non-refoulement protection.  It is not right to suggest that the Board has to invite him to submit written submissions and evidence before he would do the same.

19.  The allegation that the Board relied on materials and information that were unofficial source of news, hearsay and outdated cases lacks specificity. The applicant failed to identify which pieces of information and materials he alleged were wrong for the Board to rely on.  On the contrary, as can be seen from paragraphs 95 to 101 of the Board’s Decision, the Board did consider relevant COI with regards to the applicant’s claim that people of higher caste could act with impunity and even invited the applicant to comment on it.  Thus, there is simply no substance in the applicant’s allegation in this regard.

20.  Finally, it is not sure whether the applicant was referring to himself as the one who had suffered a stroke that had affected his memory.  There is nothing in the Board’s Decision to suggest that the applicant told the Board that he suffered a stroke which might have affected his memory.  This court also notes that the applicant answered the Board’s questions clearly at the Board’s hearing.

21.  As can be seen from paragraph 104 of the Board’s Decision, most of the claims asserted by the applicant were accepted by the Board.  The Board did not reject the applicant’s claim based on adverse findings on the applicant’s credibility.

22.  In any event, the applicant listed this ground as “unsuccessful JR grounds”, which meant that he either knew it would be unsuccessful to be used as a ground for judicial review, or the ground was used by other applicants but failed.

23.  The Court of Appeal has repeatedly held that general assertions without particulars cannot be effective grounds to support a judicial review (see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; and Re Kharsu Numan [2019] HKCA 626).  Further, as held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”.

24.  Thus, the general assertions put forward by the applicant, which merely contained “key words” such as the Board’s Decision was unreasonable and irrational, or that there was procedural unfairness, cannot help the applicant at all.  This court finds that none of the grounds asserted by the applicant constitutes a valid ground to challenge the Board’s Decision.

25.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

26.  Thus, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any valid ground being advanced by the applicant for the intended judicial review.

27.  As aforesaid, in assessing the appeal by the applicant, the Board held an oral hearing on 29 November 2024 and the applicant was present.  Thus, the applicant did have the opportunity to present his case to the Board in person.

28.  While the Board accepted most of the factual backgrounds of the applicant’s case, the Board found that the applicant was not entitled to non-refoulement protection in Hong Kong on any of the applicable grounds under the USM.

29.  The Board found the applicant’s dispute with Murthi and his family members a private one.  There was no evidence to show state acquiescence in the ill-treatment of the applicant.  There was nothing before the Board to suggest that the applicant was at risk of arbitrary deprivation of life, or that he had been subjected to pain or suffering sufficiently serious to reach the minimum level of severity required.  Any fear the applicant might have from Murthi and his family members was not for any Convention reasons.

30.  The Board also found no evidence to suggest that the Indian government would not exercise due diligence to prevent, investigate and punish those inflicted the feared treatment on the applicant if he resorted to state protection.

31.  Given its findings, it was not strictly necessary for the Board to assess the viability of internal relocation for the applicant.  However, the Board did do so as a matter of caution.  The applicant agreed at the Board’s hearing that Murthi’s influence was a localized one.  Contrary to the applicant’s assertion that Gounder-caste people like Murthi would go all the way to help each other so that he could be located, the Board found that there was no evidence including COI to suggest the same, save the applicant’s bare allegation.  The Board was of the view that the applicant, being a mature, well-educated adult with about 17 years of work experience both in India and abroad, could embark on a business venture or find a job without much difficulties if he relocated to Chennai or Bangalore or cities of their equivalent to avoid the risks in questions, if any.

32.  Thus, the Board found that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the USM.

33.  The assessment of evidence, COI and risk of harm was primarily within the realm of the Board.  The Board was entitled to come to its own conclusion.  This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

34.  Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof.  The Board also correctly identified the issues and observed a very high standard of fairness.  This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision.  The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision. 

35.  As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success.  It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

36.  For reasons aforesaid, the application to withdraw the Leave Application is refused and the Leave Application is 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