MOHAMMED TAJ v. TORTURE CLAIMS APPEAL BOARD

HCAL 1754/2020

[2025] HKCFI 3157

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1754 OF 2020

Application for leave to apply for judicial review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

	consideration of the documents only; or
	consideration of the documents and oral submissions by the applicant or counsel in open court;

1.   On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board” and “Director of Immigration” be added as the putative interested party.

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

3.   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 1 September 2020, 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 7 August 2020 (“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/2020/HCAL001754_2020_files/the_Board's_Decision.pdf

2.  The Board found that the applicant’s claim failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”).  Hence, the Board dismissed the applicant’s appeal/petition and confirmed the decision of the Director of Immigration (“the Director”) dated 21 January 2019 (“the Director’s Decision”), which rejected his non-refoulement claim.

Amendments

3.  The applicant named “Torture Claims Appeal Board Non-refoulement Claims Petition Office” as the putative respondent and did not name any putative interested party in Form 86, when only the Board should be named as the putative respondent and the Director should be named as the putative interested party. 

4.  The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board, and should not be named as a putative respondent at all.

5.  Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board” and “Director of Immigration” is added as the putative interested party.

The applicant’s case

6.  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.

7.  In sum, the applicant claimed for non-refoulement protection because he was not able to settle the sums he owed to his suppliers of goods in India who had threatened to kill him.  His suppliers were members of the All India Trinamool Congress and were rich and closely connected with the police.  He also feared that the suppliers would fabricate a case against him.  He believed that he would not be protected by the Indian police because Bharatiya Janata Party was influential in his area but he belonged to the opposition party, Indian Youth Congress Party.

Withdrawal of the Leave Application

8.  The applicant requested for an oral hearing of the Leave Application, but before a hearing is fixed, the Director sent a letter dated 9 June 2025 to inform this court that the applicant had written a letter dated 30 May 2025 to withdraw his non-refoulement claim including any appeal/judicial review.

9.  As stated in the applicant’s said letter, the reason he gave for his withdrawal application was that he wanted to go back to his home country as soon as possible, his issues in his country had been resolved and it was safe for him to go back home.

10.  There is no evidence to show that the applicant made the withdrawal application other than out of his own volition.  With this withdrawal application, it is clear that the applicant no longer wishes to proceed with the Leave Application or any oral hearing for the Leave Application.  It is therefore not necessary for this court to afford him any oral hearing for the Leave Application even though he had requested one before.

11.  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.”

12.  Thus, it is right for this court to deal with the Leave Application instead of leaving the action at large.  The applicant’s application to withdraw the Leave Application is therefore refused, and this court will proceed to consider the merits of the Leave Application.

Grounds for judicial review

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

14.  The applicant did not advance any ground for his intended judicial review in Form 86, nor in his supporting affirmation dated 1 September 2020.  The applicant merely stated in the affirmation that he was not satisfied with the decision of the Immigration Department and his life was still in danger in his home country.

Discussion

15.  First of all, only the Board’s Decision is reviewable by judicial process and not the Director’s Decision.  There are established statutory procedures of appeal from the Director to the Board and the applicant had invoked those procedures.  The Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali, [2018] HKCA 549).

16.  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).

17.  Thus, the applicant cannot ask this court to re-assess the facts of his case, but this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any specific ground being advanced by the applicant for the intended judicial review.

18.  In assessing the applicant’s appeal, the Board held an oral hearing on 3 June 2020.  After due consideration of the evidence and the oral testimony of the applicant, the Board did not accept that the suppliers had threatened to harm him as he described, or that by virtue of his political stance, members of the opposition political party would make him a target.  The Board concluded that the suppliers had no real intention to harm or kill him.

19.  The Board did not accept that there was a foreseeable, real and personal risk that the applicant would be subjected to harm from anyone upon his return to India.  There was no evidence to show that the alleged pain and suffering was inflicted by, or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity as required under section 37U of the Immigration Ordinance.  The applicant had never been actually located or harmed by the suppliers when he was in India.  

20.  The Board also did not accept that the applicant had been subjected to torture or ill-treatment.  The applicant failed to show that he had a well-founded fear of persecution for a reason under the 1951 Convention Relating to the Status of Refugees.  The dispute between him and his suppliers was private in nature and arose from his failure to repay them.  The applicant hence had not established that he faced a real risk of torture, ill-treatment, arbitrary deprivation of life or persecution.

21.  The Board noted the problem of police inefficiency and corruption in India.  However, it also found from reliable country of origin information (“COI”) that showed there were avenues for complaints for the police’s failure in properly investigating cases, and the Indian Parliament had established an ombudsman organization to combat the government corruption. In view of the COI, the Board found that the applicant could seek assistance from the police or other authorities if it was necessary.

22.  Though the Board considered that the question of internal relocation did not arise when the applicant did not have a well-founded fear of persecution, it nevertheless rejected the applicant’s reasons that he could not relocate to other parts in India and found that it would not be unduly harsh for him to do so.  The Board was not persuaded that the suppliers would be able to, or direct their resources to, locate the applicant if he returned to India.

23.  The assessment of evidence, COI materials and risk of harm was primarily within the realm of the Board.  The applicant’s alleged danger in his home country had indeed been duly assessed by the Board.  This court finds nothing wrong or unreasonable for the Board to reach its decision. 

24.  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.

25.  In fact, in view of the applicant’s latest confirmation that it was safe for him to go back home, there is absolutely no ground for him to make any non-refoulement claim and there is no prospect of success in the applicant’s intended application for judicial review at all.

26.  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 case and hence leave must be refused.

Conclusion

27.  For reasons aforesaid, the application for leave 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