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HCAL 408/2020
[2025] HKCFI 2208
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 408 of 2020
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Sheikh Azad |
Applicant |
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and
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Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
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Putative Respondent |
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and
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Director of Immigration
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Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)
Following:
Order by Deputy High Court Judge Levy:
1. The Form 86 is amended on the court’s own motion.
2. Leave be granted to the Leave Application.
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 interested party.
Observations for the Applicant:
Introduction
1. By prescribed Form 86 filed on 13 March 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 21 January 2020 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 27 December 2018 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on all applicable grounds except torture risk[1] which was covered by a prior decision of the Director dated 20 June 2013. The Board’s Decision can be viewed at the following hyperlink: -
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000408_2020_files/the_Board's_Decision.pdf
2. In his Form 86, the applicant named himself as the proposed respondent and did not name any interested party. As the Board should have been the proper respondent and the Director the interest party, the Form 86 will be accordingly amended on the court’s own motion.
3. The basis of the applicant’s claim is that he would be harmed or killed by his stepmother and his stepbrothers who had wanted to deprive the applicant of his share of his deceased father’s land. 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 15 May 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.[2] 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[3], and further to make full and frank disclosure of all material facts to be verified by an affidavit.
7. In his Form 86 and supporting affirmation, the applicant did not provide any grounds for judicial review.
8. At the hearing, this court reminded the applicant that he had not provided any grounds in his papers and asked him whether he had any grounds he wished to submit in support of the Leave Application. The applicant stated that he had nothing to say.
9. 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.[4]
10. In the present case, the Board found that the assaults by his stepmother and the other assailants in the past 3 occasions, there was no evidence that the stepmother intended to kill or to seriously harm the applicant. The Board also found that that “police protection” would be available and that internal relocation a reasonable option for the applicant. The Board found that the applicant did not face any genuine or substantial risk to his life in India and dismissed his appeal.
11. Adopting the enhanced standard in scrutinizing the Board’s Decision, this court finds that the Board’s Decision is tainted with public law errors in its assessment of the applicant’s evidence, its conclusion on the availability of state protection and internal relocation.
The Board’s assessment of the applicant’s evidence
12. In the Board’s Decision, the Board set out the questions and answers in the applicant’s SCF and asked the applicant some clarification questions. The Board however made no finding on the applicant’s credibility. Neither is there any rejection of the application’s evidence.
13. In the circumstances, the Board should have assessed the applicant’s claim based on his evidence that he had been subjected to assaults inflicted on him in 3 separate occasions by his stepmother, his two stepbrothers and her henchmen, that resulted bodily injuries. The Board should have also taken into account the applicant’s evidence that the stepmother and stepbrothers had threatened to kill him should he refuse her demand to sell his father’s land and give her the sale proceeds.
14. Despite the unchallenged evidence, the Board in its assessment of the persecution risk however found that there was no evidence that the stepmother intended to kill or to seriously harm the applicant (Board’s Decision at [76]). Instead, the Board characterized the assault incidents as “harassments”. I am of the view that the Board’s finding of the lack of evidence of the stepmother’s intention to kill is plainly not supported by the unchallenged evidence. Furthermore, the Board seems to have assessed the risk by using his own assumptions, which is arguably procedurally unfair.
15. The Board has not taken into account the applicant’s uncontroverted evidence that the stepmother had stabbed his father to death, assaulted the applicant causing permanent bodily harm on 3 separate occasions, leaving the applicant with scars from the injuries, as well as the evidence of the threats having made to the applicant. The Board is obligated by the high standard of fairness to make an assessment as to whether the applicant had suffered severe pain and physical or mental suffering and if so, whether such suffering reached the minimum level of severity. However, the Board seems to have not made any findings on these relevant matters.
16. In the circumstances, the Board’s assessment of the absence of real risk of harm is procedurally unfair as it did not consider whether the harm or ill-treatment the applicant has been subjected to could amount to cruel, inhuman or degrading treatment or punishment (“CIDTP”) or there is evidence of a risk of CIDTP under BOR 3 risk[5]
17. As discussed earlier, there is no mention or consideration of any COI in the Board’s Decision. Thus there is no valid finding on either state protection or internal relocation. It is trite that availability of state protection and viability of internal relocation are relevant to, and can be determinative of, a proper assessment of BOR 3 risk.
18. Thus it seems the Board has not properly considered BOR 3 risk, and has not made any valid finding on BOR 3 risk. It is reasonably arguable that the Board’s Decision is erroneous in law, unreasonable and tainted by procedural unfairness in relations to it assessment of BOR 3 risk.
State protection and internal relocation
19. At [54] of the Board’s Decision, the Board found that “police protection is available” to the applicant in his home country. At [57] of the Board’s Decision, the Board found that internal relocation is a reasonable option.
20. When reaching the conclusions stated in the preceding paragraph, the Board did not seem to have referred to or considered any COI notwithstanding that it had been provided by the Director to the Board.
21. The Board was required to demonstrate it had conducted an independent assessment of the COI before it and made its own findings: A, B, C, D and E v Torture Claims Appeal Board [2024] HKCA 471. In the circumstances, the Board’s decision is arguably tainted by procedural unfairness.
22. In any event, the Board’s assessment of the applicant’s evidence in relation to the police protection also seems to be irrational. It is the applicant’s unchallenged evidence that due to the bribes the police received from his stepmother, she was able to secure an early release from prison for the killing of his father and that the police did not follow up on the report the applicant made about the assaults. It is therefore unreasonable for the Board to conclude that the police were functioning properly though not as ideal as the applicant expected (Board’s Decision at [52]).
Conclusion
23. In the premises, and for all the given reasons, I am of the view that the applicant’s Leave Application is reasonably arguable in its assessment of BOR 3 risk, COI, the availability of state protection and the viability of internal relocation, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676..
24. Leave is granted to the applicant to apply for judicial review of the Board’s Decision.
25. Accordingly, I grant leave to the applicant to apply for judicial review of the Board’s decision in relation to BOR 3 risk , the assessment of COI, the availability of state protection and the viability of internal relocation 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 interested party.
Orders
26. The Form 86 is amended on the court’s own motion.
27. Leave be granted to the Leave Application.
28. 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 interested party.
Dated the 4th day of June 2025
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(Alfred Chan)
for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 4/6/2025
Sheikh Azad
Applicant’s ref. no:
Nil.
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 4/6/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 15155/19/1/28/IN2998
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 4358/18 formerly RBCZ/2002393/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] This refers to the risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap.115.
[2] Re Zunartyah [2018] HKCA 14 at [23].
[3] Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015, 22 December 2016 at [142].
[4] Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.
[5] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Art 3 of HKBOR.
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