MOHAMMED AKBAR 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 be amended on the court’s own motion.

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

Observations for the Applicant:

Introduction

1.  By a “Notice of application to apply for leave for judicial review” in the prescribed Form 86 filed on 10 November 2020, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 2 November 2020 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 7 February 2018 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on all applicable grounds. The Board’s Decision can be viewed at the following hyperlink: -

  https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL002244_2020_files/the_Board's_Decision.pdf

2.  In the Form 86, the applicant named the Board as well as the Director as the proposed respondents and interested parties. As the Board should have been the proper respondent and the Director the interested party, the Form 86 shall be amended accordingly on the court’s own motion.

3.  The basis of the applicant’s claim was that he would be harmed or killed by Bobby Hakim and his people who were affiliated with Trinamool Congress Party because of political disputes. The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them. Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

4.  At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 11 September 2025. The applicant attended the hearing in person. After having heard from him, this court informed him that the decision would be reserved, and be sent to his updated address.

Discussion

5.  The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[1] It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

6.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[2], and further to make full and frank disclosure of all material facts to be verified by an affidavit. The applicant’s Form 86 provided no such grounds. In the supporting affirmation, the applicant alleged that :

(i)  He had been deprived of his basic right for lack of legal and language assistance (at [15] , [16] , [19] ,[27] to [29] );

(ii)  The approach to the COI was selective and failed to address the negative aspects in relation to the corrupt police, uncontrollable political violence and corrupt government ([17], [24]); and

(iii)  The Board failed to carry out sufficient research and inquiry into the COI condition and to put sufficient weight on highly relevant information that was supportive of the applicant’s case ([25] and [26]).

7.  In view of the applicant’s contentions in relation to the lack of language assistance, this court asked the applicant as to whether he had anything to say and whether he wished to elaborate on the allegation, he set out in the supporting affirmation. The applicant stated that his life would still be in danger if he were to go back home. He said that at the hearing before the Board, he was provided with an interpreter and he could understand everything that was interpreted to him. His complaint was that when he received the Board’s Decision, he could not understand the content as it was written in English. However, he said that through the help of his friend, the Board’s Decision was explained to him.

8.  As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality.[3] In the present case, the Board found that the applicant was not a witness of truth and that he had fabricated the material aspects of his claims such as his membership of and nomination for a position within the Youth Congress and in relation to the harm that he had received as a result of such membership and nomination. The Board found that should the applicant return to India in the reasonably foreseeable future, there was nothing to suggest that he would be subjected to the risks of harm. The Board concluded that state protection and internal relocation would be available. These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

9.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness. I am satisfied that the Board’s adverse credibility assessment was based on a very detailed and thorough consideration of all of the applicant’s evidence, which was found to have contained lots of inconsistences that the applicant could not satisfactorily explained.

10.  As to the applicant’s first ground of complaint on the lack of legal and language assistance, it is well-established that as a matter of law, a non-refoulement claimant is not entitled to free legal representation at all stages of the process and that the high standard of fairness required by law does not entail interpretation service being made available to an applicant all the time as he desires: Re Zunariyah [2018] HKCA 14 at [18]; Re Zahid Abbas [2018] HKCA 15 at [11] and Re Tariq Farhan [2018] HKCA 17 at [11]. In any event, the applicant was legally represented in the initial preparation of his case by the completion of the non-refoulement claim form and screening interview with the Director, which formed the basis of his claim. 　I do not find the non-availability of legal representation in the processes before the Board or the court amounts to any procedural unfairness.

11.  As for the lack of interpretation, the applicant’s only complaint was that the Board’s Decision was rendered in English. However, the fact that he was able to file the Leave Application shows that the applicant was able to obtain proper assistance. It has been decided in Hong Kong that the high standard of fairness required by law would not entail an interpretation service being made available to an applicant all the time as he may desire: see Re Gurnishan Singh [2018] HKCA 704; Re Gurung Sagar [2019] HKCA 658. I do not find any procedural error in relation to the applicant’s complaint about lack of language assistance.

12.  Regarding the other two complaints, they are concerned with COI. The Board has demonstrated that it has independently assessed the relevant COI (see Board’s Decision [54]-[58]), while the applicant’s complaints are vague and do not condescend to particulars. I am unable to find that there is procedural error in relation to COI.

13.  In conclusion, I find that the applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision. The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[4].

Order

14.  The Form 86 be amended on the court’s own motion.

15.  The applicant’s 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