MD MEHFOOZ v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 982/2020

[2025] HKCFI 3290

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 982 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.   Leave is granted to the applicant to file the Leave Application out of time.

2.   Leave is granted to the applicant to issue a judicial review application against the Board’s Decision.

3.  The applicant shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.             

Observations for the Applicant:         

Introduction

1.  By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 25 May 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 17 August 2018 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 23 February 2017 (“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/HCAL000982_2020_files/the_Board's_Decision.pdf

2.  The applicant is an Indian national from West Bengal state.  The basis of the applicant’s claim is that he would be harmed or killed by Saleem Khan who demanded the applicant to repay a loan guaranteed by the applicant’s deceased father. 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.

3.  At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 18 July 2025, which the applicant attended 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

4.  A 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.

5.  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.   

6.  In his supporting affirmation, the applicant raised the following grounds for judicial review:  

(a)  the Board was unreasonable in making speculative findings in its assessment of risk;

(b)  the Board’s credibility assessment was unreasonable;

(c)  the Board failed to properly consider and weigh country of origin information (“COI”), and the COI relating to internal relocation had no bearing as to whether the applicant would be safe;

(d)  the Board made a mistake of fact in assessing risk of harm.

7.  At the hearing, this court asked the applicant whether he had any further grounds he wished to submit in support of the Leave Application. The applicant stated that he had nothing further to say or to supplement.

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, after having considered all the written and oral evidence, and the submissions of counsel for the Director and the applicant, the Board found that the applicant was not a truthful witness, due to gaps and perceived exaggerations in his evidence.  The Board further found that the applicant only applied for non-refoulement protection after he was arrested by the police was inconsistent with his asserted fear of torture. The Board also concluded that the applicant’s injuries did not reach a requisite level of severity and he would not face a genuine and real risk of being subjected to ill-treatment if refouled. The Board further concluded that state protection was available and that internal relocation would be viable.  These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

Adverse credibility assessment

9.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the decision of the Board, I should consider whether the Board had observed a very high standard of fairness^[4], which  obliges a decision-maker ( in the present case the Board), among others, to give the applicant every reasonable opportunity to establish his claim and to adopt an active role by drawing attention to the applicant “matters that needed clarification or elaboration so that they can be addressed by” the applicant[5].

10.  In the present case, when setting out the applicant’s evidence that the Board had specifically rejected (at [22] of the Board’s Decision), the Board seems to have fallen into the error identified in JB (DR Congo) v Home Secretary[6].  At [22(1)] of the Board’s Decision, the Board asked rhetorically”

“In the present case the Petitioner was attacked with bare hands and he suffered from bruises. He further said his left thigh was hit with the sharp point of an iron rod and his chin was also hit by iron rod. What sort of treatment was he given? He said the doctor stitches his thigh and chin and bandaged his injuries. What sort of bandage did he need when he was attacked with bare hands” (Emphasis added).

11.  Instead of seeking clarification from the applicant, the Board concluded that the applicant’s evidence was a gross exaggeration and could not be believed. The Board in this case had given no indication about his disbelief in those aspects of the evidence. As stated in JB (DR Congo), “Given that the [applicant] appeared before him, if [the Board] had thought that the [applicant] needed to give more detail than he had, [the Board] should have sought such details”: JB (DR Congo) at [7]. 

12.  Importantly, the Board’s adverse credibility assessment appears to have been based on its own personal opinion and assumptions. In [22 (i)] of the Board’s Decision, the Board stated:

“Having dealt with a lot of cases from India I find that in many cases the Petitioners invariably claimed that they lost consciousness after being assaulted and when regained consciousness they found themselves in hospital and had to be hospitalized for many days.”

13.  By referring to his own previous experiences in casting doubt on the applicant’s credibility, the Board appears to have erroneously applied his subjective opinion based on his previous dealings with non-refoulement claimants from India. The applying of a decision-maker’s own common sense in non-refoulement claims has been disapproved in ST v Betty Kwan^[7] (which was later followed in TI v Winston Leung^[8] ). A decision-maker is not entitled to make his or her own assumptions, conjecture or speculation. 

14.  In the circumstances, I conclude that it is reasonably arguable that the Board’s Decision is tainted by an error of law, procedural unfairness or irrationality, and fails to meet the required high standards of fairness.

Incomplete consideration of evidence when assessing the level of risk of harm

15.  As recorded in the Director’s Decision ([8.10]), in the First Incident, Saleem and 6 unknown men put a pistol in the applicant’s mouth. The applicant’s left thigh was hit with the sharp point of an iron rod, and the sharp point stabbed into his left thigh.  His head and chin were also hit by iron road and the backside of a pistol. For the treatment he received in the hospital, in addition to stitches at his thigh and chin, the applicant was prescribed painkillers. It took him 2 months to recover from the injuries.

16.  However, in describing the applicant’s injuries, the Board appears to have failed to consider the full extent of the applicant’s injuries resulting from its omission in part of the applicant’s evidence as stated above.   Further, at [22(ii)] of the Board’s Decision, the Board also misapprehended the applicant’s evidence as to Saleem’s involvement with CPIM by merely stating that Saleem was merely “associated” with CPIM. By not mentioning the applicant’s evidence that Saleem was previously a CPIM member at one point, the Board would appear that it have failed to properly assess Saleem’s influence and the resultant threats he and his men had posed.

17.  In the circumstances, the Board seems to have failed to observe a high standard of fairness to consider all relevant considerations[9], including taking into account every factor that might tell in favour of a the applicant[10].

18.  For these reasons, it is reasonably arguable that the Board’s Decision is erroneous in law, unreasonable, tainted by procedural unfairness and does not meet the required high standards of fairness.

Whether to grant extension of time

19.  The Form 86 was filed more a year after the three-month filing deadline.

20.  At the hearing, I inquired from the applicant the reason for the delay, The applicant gave very confusing explanation. He stated that he did not know it was late when the Leave Application was filed. He insisted that he would have not delayed the filing, as he believed that he had made the Leave Application immediately. He further stated that if he had been late, an Immigration officer would have told him. He said that any delay would have been due to his confusion regarding the procedure to challenge. 

21.  From the applicant’s explanation, it appears that the Applicant had not sat on the time line but made a genuine effort to challenge the Board’s Decision. Having taken into account my conclusion in relation to merits in the present case, I believe that I should exercise my discretion to grant extension of time to the applicant to file the Leave Application out of time.

Conclusion

22.  In the premises, and for all the given reasons, I am of the view that the applicant’s Leave Application is reasonably arguable on those grounds stated above, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

23.  Accordingly, I grant leave to the applicant to apply for judicial review of the Board’s decision, and direct that he shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.

Order

24.  Leave is granted to the applicant to file the Leave Application out of time.

25.  Leave is granted to the applicant to issue a judicial review application against the Board’s Decision.

26.  The applicant shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.

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