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

HCAL 1697/2020

[2025] HKCFI 5092

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1697 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 the documents and oral submissions by the Applicant in open court;

1.  Form 86 be amended, and the Director of Immigration be named as the Putative Interested Party.

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

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 21 August 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review against the decision by the Torture Claims Appeal Board (the “TCAB”) dated 27 March 2020 (the “TCAB Decision”), which affirmed the decision of the Director of Immigration (the “DOI”) dated 25 June 2018. It is noteworthy that the Applicant had previously lodged a torture claim which was dismissed (appeal also dismissed in 2013). See TCAB Decision [1-2, 6-13].

2.  On my own motion I amend the Form 86 to name the DOI as the putative interested party.

3.  The Applicant requested for a hearing of this application and he attended the same.

Background

4.  The Applicant is a national of India and is a Muslim. He came from a mixed Muslim and Hindu village. There were major fights and disputes between the 2 religious groups related to the sacrifice of cows by Muslims at certain times of the year (whereas the Hindus worshipped cows). The Applicant seeks non-refoulement protection on the basis that he feared for his life because when he and his friends sacrificed a cow (being unaware of the importance of cows to the Hindus) in 2004, someone tipped off the owner of the cow (“Suman”) who reacted angrily. In an ensuing fight the Applicant fractured Suman’s arm. Subsequently Suman through his gang, family, leaders of the Hindu temple and the Hindu community began to look for the Applicant and his friends. Suman threatened the Applicant’s family that he would kill the Applicant when he found him. The Applicant’s family tried to settle the issue through negotiation but Suman would not listen. The Applicant’s personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be viewed through a hyperlink[1]. I shall therefore not repeat them.

Discussion

5.  The leave application operates as a filtering process and there is no requirement or expectation to give elaborate reasons for my decision: Re Zunariyah [2018] HKCA 14 at [23]. It is sufficient to state my observations after considering the TCAB Decision and the materials adduced by the Applicant.

6.  I remind myself that in a judicial review, this court does not provide a further avenue of appeal. Though in non-refoulement cases an enhanced standard in scrutinizing the decision of the TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI are the primary decision-makers. A finding of fact is exclusively within the realm of the TCAB, and this court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the TCAB: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)]. There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

7.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (unreported, HCAL 21/2015, 22 December 2016) at [142], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

8.  The Applicant did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision in the Form 86. He merely stated in his affirmation that he was “not satisfied” with the TCAB Decision and his life was still in danger in his home country.

9.  As can be seen from the TCAB Decision, the TCAB took into account all the evidence available [30-37, 38-50] and found that on the basis of the same, applying also the correct legal principles in respect of the remaining three applicable grounds (i.e. excluding torture risk) [14-29] and taking into account Country of Origin information [39], the Applicant’s allegations were insufficient to make out any of the applicable grounds [51-64, 70-71]. In particular, the TCAB found that the key contentions of the Applicant are incredible [63].

10.  Further, the TCAB also concluded that internal relocation was available on the basis of the available evidence [65-69].

11.  At the hearing the Applicant repeated that the danger was still continuing. His family was still trying to resolve the matter through negotiations, and once this is achieved he would be willing to go back voluntarily. This however is not relevant to the issues I need to deal with and does not advance the Applicant’s case for the purpose of the application.

12.  All in all, I do not see any errors of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny. The Applicant’s intended challenge to the TCAB Decision is not reasonably arguable, and accordingly the application for leave to apply for judicial review is dismissed. I further note that the application was brought out of time, given that Order 53 rule 4(1) requires the leave application to be taken out within 3 months after the TCAB Decision was made. Since I have held that the application is without merit, I also refuse to grant an extension of time (there was in any case no explanation for the delay).

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