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HCAL 1934/2020
[2025] HKCFI 3670
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1934 OF 2020
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Mohammad Subhan |
Applicant |
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and
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Torture Claims Appeal Board
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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 (Order 53, rule 3)
Following:
Order by Deputy High Court Judge Michael WONG:
1. On this court’s own motion, “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 22 September 2020 and filed on 25 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 8 September 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/HCAL001934_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 confirmed the decision of the Director of Immigration (“the Director”) dated 1 April 2020 (“the Director’s Decision”), which rejected the applicant’s non-refoulement claim.
Amendment
3. The applicant did not name any putative interested party in Form 86, when the Director should be so named.
4. Thus, on this court’s own motion, “Director of Immigration” is added as the putative interested party.
The applicant’s case
5. 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.
6. In sum, the applicant claimed for non-refoulement protection because if refouled to India, he would be at risk of being harmed or killed by Rajbir Singh (“Rajbir”), Hansraj and Giriraj as well as their associated political party, Bharatiya Janata Party, due to his love relationship with Dibya Kumari (“Dibya”). Rajbir is the father of Dibya, while Hansraj and Giriraj are Dibya’s brothers.
Withdrawal of the Leave Application
7. The applicant requested for an oral hearing of the Leave Application, but before a hearing is fixed, the Director sent a letter dated 22 May 2025 to inform this court that the applicant had written a letter dated 12 May 2025 to withdraw all non-refoulement claim including any appeal/judicial review.
8. As stated in the applicant’s said letter, he wanted to withdraw his judicial review application because he wanted to return to his home country as soon as possible, his issue in his country had been resolved and it was safe for him to go back home.
9. 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.
10. 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.”
11. 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
12. 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).
13. The applicant did not advance any ground for his intended judicial review in Form 86. In his supporting affirmation dated 22 September 2020, the applicant merely stated that he faced all these dangerous problems and harassment and torture in his home country, and he was unable to find any place to stay safely in his country. The applicant also complained that the Director reached the wrong decision without any proper inquiry and carefully understanding his situation.
Discussion
14. 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).
15. Hence, the grounds for the intended judicial review that were asserted against the Director’s Decision can be simply ignored.
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 his danger or 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. The applicant was afforded an oral hearing before the Board on 11 August 2020 and the applicant was present. Thus, the applicant did have the opportunity to present his case to the Board in person.
19. The Board found that the threats from Dibya’s family, if any, was originated from a private dispute, the applicant had not suffered any physical and/or mental suffering from Dibya’s family or their fellows of the requisite severity, and those threats would fall short of the required level of a genuine and substantial risk.
20. Thus, the Board concluded that the applicant would not face a real risk of any of the proscribed forms of harm upon his return to India. Further, the Board found no evidence to show that the state of India was unwilling or unable to afford protection to the applicant, and internal relocation was both viable and not unduly harsh for the applicant. This court finds nothing wrong or unreasonable in the way the Board reached its decision.
21. 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.
22. Thus, there is no merits in the Leave Application at all.
23. In fact, in view of the applicant’s latest confirmation that it was safe for him to return to his home country, 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.
24. 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 intended judicial review has no realistic prospects of success at all, and hence the Leave Application must be dismissed.
Conclusion
25. For reasons aforesaid, the application for leave to withdraw the Leave Application is refused and the Leave Application is dismissed.
Dated the 19thday of August 2025
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(Irene LEE)
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 his 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/Handed to the applicant/the applicant’s solicitors on:
19 August 2025
Applicant’s ref. no:
Nil
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Sent/Handed 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: 19 August 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 16891/20/4/57/IN3164
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 88/20
(Formerly RBCZ 10057/20)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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