RAMASAMY BASKAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 478/2020

[2025] HKCFI 1734

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 478 of 2020

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

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

1.  Form 86 be amended as follows:- the Director of Immigration be named as the Putative Interested Party.

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

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 1 April 2020 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against the decision of the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office (the “Board”) dated 20 March 2020 (the “Board’s Decision”).

2.  In the Form, the Applicant has named the Board as both the proposed respondent and the proposed interested party. As it is trite that the Board should be the proposed respondent whereas the Director of Immigration (the “Director”) should be the proposed interested party, I make an order to amend the Form accordingly on the court’s own motion.

3.  The Applicant had requested an oral hearing for the application. The hearing took place on 22 April 2025 and the Applicant attended in person.

Background

4.  The Applicant’s background, the basis of his claim and the arguments he advanced had been set out in details in the Board’s Decision, and it is not necessary for me to repeat the same here. The hyperlink to the Board’s Decision is included below[1] for reference.

Discussion

5.  The applicable legal principles relating to application of this sort are well established. The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. Though in non-refoulement cases, the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence, country of origin information (COI) materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board. (See Nupur Mst v Director of Immigration [2018] HKCA 524, at §14)

6.  In the Form, the Applicant did not provide any grounds in support of the Leave Application. In the supporting Affirmation, the Applicant said he still has problem in India and his life will be at risk there. He said he will be killed by a “particular group” if he returns to India because of his inability to settle the debts. Finally, the Applicant claimed that he cannot relocate to other parts of India and will not have state protection in India.

7.  At the hearing on 22 April 2025, the Applicant said his claims were not investigated properly. He further submitted documents showing that he will have medical appointment in January 2026 in Hong Kong. He hoped to be allowed to stay here and attended the medical appointment.

8.  I have considered the Board’s Decision in details. I do not find any error of law, procedural unfairness or irrationality. Neither has the Applicant been able to demonstrate any of the same. There is nothing to indicate that the Board had failed to take into account any relevant matters, including those stated by the Applicant in the supporting Affirmation. The Board’s Decision was comprehensive with adequate reasons provided. In particular, the Board was plainly correct in finding that there is no evidence of any real risk of any form of harm, given that the Applicant was never subjected to serious harm from his alleged creditor (§§3, 4, 6, 7, 17-21, 29, 37, 40 of the Board’s Decision). The Applicant’s contention that he will not have protection in India or that he cannot relocate to other parts of the country is a bare assertion not supported by evidence. As correctly noted by the Board, the Applicant did not even file a complaint to the police about the alleged assaults. Under such circumstances, the Board was entitled, and indeed correct, to find that state protection will be available in any event or that the Applicant can be relocated to other parts of India (§§24-29 of the Board’s Decision). The Board’s Decision satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational. As regards the alleged medical appointment in January 2026, I do not consider the same to be relevant consideration to the present Leave Application. In short, I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success. Accordingly, I refuse to grant leave for judicial review.

9.  Leave application of this sort is meant to be a filtering process and I am not expected to give elaborated reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23). Suffice for me to state that in reaching the decision, I have considered all the relevant documents before me, as well as the grounds advanced by the Applicant.

Conclusion

10.  In the premises, I make an order that the Form be amended as described above and the Leave Application 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