SHAUKAT ALI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 835/2020

[2025] HKCFI 3038

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 835 of 2020

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

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

1.   Form 86 be amended to add the TCAB as putative respondent and the DI as putative   interested party; and

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

Observations for the Applicant:

1.  By a Form 86 filed on 7 May 2020 (“Form 86”), the Applicant sought leave for judicial review of the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“TCAB”) made on 27 April 2020 (“the TCAB Decision”). A copy of the TCAB Decision was attached to the Applicant’s supporting affirmation and can be viewed by the following hyperlink[1].

2.  The TCAB Decision was made pursuant to a petition/appeal from a decision of the Director of Immigration (“DI”) dated 16 April 2018.  In the Form 86, although the Applicant identified the date of the decision sought to be challenged as 27 April 2020, he failed to identify the putative respondent/interested party.  I amended the Form 86 on my own motion to name the TCAB as the putative respondent and the DI as the putative interested party to this application.

3.  The Applicant also failed to identify any alleged errors of law, irrationality or procedural unfairness on the part of the TCAB in reaching the TCAB Decision to make good his challenge, either in the Form 86 or the supporting affirmation.  In the oral hearing before me, he only said he does not want to go back to his country of origin India and had nothing to add.

4.  I have reviewed the TCAB Decision vigorously.  The Applicant claimed that he is a Muslim and he feared of being harmed by people in the Hindu community of his village if he returns to India.  The TCAB conducted an oral hearing for the Applicant to make representation, and it had reviewed the documents in a hearing bundle containing, amongst others, the Applicant’s initial signification, non-refoulement claim form, record of interview, screening interview record and notice of appeal before coming to its decision. 

5.  The TCAB made reference to country information from reliable sources including the United Kingdom’s Home Office, and took note of (i) provisions in the Indian Constitution prohibiting discrimination on grounds of religion and guaranteeing right to practice religion; (ii) religious distribution of the Indian population and where Indian Muslim communities generally lived; (iii) the existence of local laws against conversion of religion by force or inducement etc.  At the same time, the TCAB did not ignore information that since India’s independence, there were instances of communal tension involving Muslims and attacks against them. 

6.  After an intense factual inquiry with the Applicant and analysis of his claim, the TCAB did not accept the Applicant to have been the target of forced conversion from Islam to Hinduism.  The TCAB accepted that he is a Muslim and had genuine concerns about the future of Muslims in India in the wake of a Citizenship Bill and the related announcement of a proposed citizenship register.  However, the TCAB did not accept that India’s 1.7 million Muslim population would be systematically targeted for serious harm by Government agents or members of the society generally.  The country information was found to be not supportive of the Applicant’s assertion that he would face a real chance of harm of any kind in the foreseeable future.  Upon this factual assessment, and applying the principles relating to torture, Bill of Rights and persecution risks, the TCAB found that the Applicant’s claim was not established and the DI’s tier-one decision should be confirmed.  

7.  In my judgment, the TCAB Decision was supported by factual findings and the TCAB had conducted an anxious scrutiny of the available evidence and information.  It has been reiterated time and again that the primary responsibility for the factual assessment of whether any future risk of ill-treatment exists should an applicant return to his/her home country lies with the TCAB.  In the absence of any errors of law, procedural unfairness or irrationality, the Court would not reopen the TCAB’s findings or make a determination on the case afresh.  The role of the Court in a judicial review is not to provide a further avenue of appeal (see Re Lakhwinder Singh [2018] HKCA 246).

8.  The leave application to apply for judicial review is thus 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