TAILOR SIRAJ NIZAMUDDIN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1290/2020

[2026] HKCFI 85

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1290 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 the Applicant being absent in open court;

The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  The Applicant is a national of India. By a Form 86 filed on 24 June 2020 (“Form 86”), which was accompanied by a supporting Affirmation also filed on 24 June 2020 (“the Affirmation”), the Applicant sought leave to apply for judicial review of a decision of the Torture Claims Appeal Board (“TCAB”)/Non-Refoulement Claims Petition Office (“NRCPO”) made on 19 June 2020 (“the TCAB Decision”)[1] which was exhibited to the Affirmation. I will use the abbreviations and definitions from the TCAB Decision unless otherwise specified herein.

2.  The Applicant sought an oral hearing of his application, but did not attend that scheduled for 28 August 2025. I have therefore dealt with the application on the papers.

Background

3.  This is set out in the TCAB Decision. While I will not repeat the contents thereof, in summary and in relation to the assessment of his claim:

(1)  The Applicant claimed non-refoulement relief on the basis that if he were sent back to India, he would be harmed or killed by his relatives Usha, Towfiq, and Jhinak due to a land dispute;

(2)  The claim was assessed on the grounds of Torture Risk[2], BOR 2 Risk[3], BOR 3 Risk[4], and Persecution Risk[5] and was rejected by the Director of Immigration (“Director”) in a decision dated 12 September 2018 (“Director’s Decision”);

(3)  The Applicant appealed/petitioned to the TCAB/NRCPO, which held a hearing in relation to the Applicant’s non-refoulement claim on 16 April 2020; and

(4)  The TCAB/NRCPO issued the TCAB Decision on 19 June 2020, in which it dismissed the Applicant’s appeal/petition and confirmed the Director’s Decision.

Legal Principles

4.  An applicant, even one acting in person, is required to identify the grounds of judicial review clearly and succinctly in the Form 86, and to fully and frankly disclose all material facts and potential legal answers (Ho Loy & Another v Director of Environmental Protection, unrep. HCAL 21/2015, 22 December 2016, Chow J. (as he was then) at §142; Leung Kwok Hung, unrep., HCAL 83/2012, 28 September 2013, Lam J. (as he was then) at §35; Begum Khadija [2018] HKCA 571; Khan Kamran [2020] HKCA 380).

5.  It is trite that the role of the Court in a judicial review is not to provide a further avenue of appeal, and that the Court should not usurp the role of the TCAB/NRCPO which is (and together with the Director are) the primary decision‑makers. The assessment of evidence, COI materials, and credibility, risk of harm, state protection and viability of internal relocation are primarily within the province of the TCAB/NRCPO and the Director, which are entitled to make evaluations based on the evidence available and to decide the weight to be given to them. While the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, the 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/NRCPO. (Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; Nupur Mst v Director of Immigration [2018] HKCA 524; Re Kartini [2019] HKCA 1022; Re Rupinder Singh [2021] HKCA 886).

6.  In order for me to give leave for judicial review, I have to be satisfied that there is an intended ground of review which is reasonably arguable, which is one that enjoys a realistic prospect of success (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676). As a leave application of this sort is meant to be a filtering process, I am not expected to give elaborate reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23).

Discussion

7.  The Applicant has not identified or set out any grounds of judicial review in the Form 86 or in the Affirmation, as they contain no allegation of any procedural unfairness in relation to, of any error of law in, and/or of any irrationality/failure to meet the enhanced Wednesbury test in, the TCAB Decision. The Affirmation merely asks the court to review his case, claims that he cannot go back to his country as “the problem has become worse than before” and asks the court to “ACCEPT [his] APPEAL so that [he] CAN STAY SAFE IN HONG KONG.” However, as I have mentioned, the role of the Court in a judicial review is not to provide a further avenue of appeal.

8.  Nevertheless, given the seriousness of the issues at hand, I have in relation to the question of merits of the substantive application considered the TCAB Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard and bearing in mind the need for a high standard of fairness.

9.  The TCAB/NRCPO set out the Applicant’s background, immigration and procedural history, the documents submitted in relation to the Applicant’s claim, and summarised the Applicant’s claim including in relation to the alleged incident, as well as events and matters raised by and with the Applicant after he had made his claim for non-refoulement relief, including as to internal relocation and the availability of state protection.

10.  The decision-maker also set out the relevant principles and approach in relation to each of the four types of risk (Paragraphs 51 to 63) and the conduct of and the Applicant’s evidence at the hearing (Paragraphs 64 to 68). He concluded, with reference to salient reasons and principles, that the Applicant’s evidence relating to the facts on which the claim was based was unreliable and questionable, and found that it was not credible. He was also not persuaded, even to the low standard applicable, that the Applicant had a genuine fear of being harmed by Usha, Towfiq, and Jhinak in his home village, or that he had otherwise been ill-treated by anyone in India. The Applicant had therefore not established, even to the low standard required, that he would face ill-treatment if refouled. There was hence no real chance of him being so harmed if he were refouled. Moreover, based on the relevant evidence it was concluded that Usha, Towfiq, and Jhinka were also were only acting in their private capacity and there was no evidence that government officials were involved in the dispute between them and the Applicant’s father. On the evidence and COI, reasonable state protection was readily available to the Applicant in India. It was also assessed that the chances of Usha, Jhanak, and Towfiq being able to find him outside his home area were minimal, that internal relocation for the Applicant was available and not unduly harsh, and that such would lower or negate the perceived risk of ill-treatment if the applicant were refouled (Paragraphs 34 to 50, 69 to 86).

11.  Torture Risk was therefore not established given there was no evidence that severe pain and suffering would likely be inflicted on him if he were returned, the nature of the dispute, the lack of state involvement or acquiescence, and the availability of state protection and internal relocation. Persecution Risk was rejected due to the lack of a Convention reason for ill-treatment. BOR 3 Risk was also rejected given the evidence before the Board, as was BOR 2 Risk with relation to Arts. 2(2) to 2(6). Accordingly, the Applicant had failed to establish that he was entitled to non-refoulement protection on any of the available grounds, the appeal/petition was dismissed, and the Director’s Decision was confirmed (Paragraphs 87 to 107).

12.  I do not, from my examination and scrutiny, see that the Applicant has any reasonably arguable case that there was procedural unfairness (bearing in mind the need for a high standard of fairness), an error of law, and/or irrationality/failure to meet the enhanced Wednesbury test that is sufficient to vitiate the TCAB Decision, and that justifies the grant of leave. This is especially so as to the assessment, reasoning, and findings regarding the credibility, evidence, risk of harm, state protection, and internal relocation which are matters primarily within the province of the decision-making body. Nor is there any public law basis to vitiate the decision-maker’s conclusions regarding Torture Risk, Persecution Risk, and BOR 3 Risk. While the TCAB/NRCPO appears to have taken too narrow a view of BOR 2 Risk, it is clear that it would, if it had applied the correct test, have reached the same conclusion given the Applicant’s failure to establish BOR 3 Risk, the underlying findings (in particular those relating to the Applicant’s evidence, credibility, and risk of harm) relating to such, and the lack of any public law basis to vitiate such. I therefore do not see that such issue, taken on its own, vitiates the TCAB Decision and justifies the grant of leave (see Kulwinder Kaur [2022] HKCA 49 at §§54-60, Sandhu Vinny [2022] HKCFI 2327 at §§24-26, [2023] HKCA 1261 at §§30, 32-33).

13.  I am therefore not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success.

Conclusion

14.  In the circumstances, I have made the orders above, including that the application for leave to apply for judicial review be 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

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