AHMAD RODIN v. TORTURE CLAIMS APPEAL BOARD

HCAL 233/2020

[2025] HKCFI 1815

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 233 OF 2020

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

	consideration of the documents only; or
	consideration of the documents and oral submissions by the applicant or counsel in open court;

1.  On this court’s own motion, “Torture Claims Appeal Board” be added as the putative respondent, the name of the putative interested party be amended to “Director of Immigration”, and the decision in respect of which relief is sought be amended to “The Torture Claims Appeal Board’s decision dated 15 November 2019”.

2.  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 10 December 2019 and filed on 21 January 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision dated 13 July 2019. However, there was no such decision. The decision of the Torture Claims Appeal Board (“the Board”) regarding his appeal/petition against the decision of the Director of Immigration (“the Director”) dated 20 August 2019 (“the Director’s Decision”) was made on 15 November 2019 (“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/HCAL000233_2020_files/the_Board's_Decision.pdf

2.  The Board decided that the applicant did not make out his claims for non-refoulement protection on any of the applicable grounds under the Unified Screening Mechanism (“the USM”) and confirmed the Director’s Decision accordingly.

Amendments

3.  The applicant did not name anyone as the putative respondent, but named the Board as the putative interested party in Form 86. The applicant also wrongly named the Director as the defendant in his supporting affirmation dated 11 December 2019.

4.  It is clear that the applicant is seeking leave to apply for judicial review against the Board’s Decision, as there was no decision dated 13 July 2019 and the Board’s Decision has superseded the Director’s Decision.

5.  The Board should therefore be named as the putative respondent and the Director should be named as the putative interested party. Thus, on this court’s own motion, “Torture Claims Appeal Board” is added as the putative respondent and the name of the putative interested party is amended to “Director of Immigration”.

6.  Likewise, the decision in respect of which relief is sought is amended to “The Torture Claims Appeal Board’s decision dated 15 November 2019”.

The applicant’s case

7.  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.

8.  In sum, the applicant claimed for non-refoulement protection because he feared being harmed or killed by his stepfather if refouled to Indonesia, as his stepfather, who was a member of the Islamic State of Iraq and Syria (“ISIS”), had asked him to join ISIS, but he refused.

Grounds for judicial review

9.  The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

10.  The applicant did not advance any ground for his intended judicial review in Form 86. In his supporting affirmation dated 11 December 2019, the applicant just stated that he does not want to go home because he does not want to be killed by his stepfather and he does not want to follow his stepfather’s teaching to join ISIS. The applicant also stated that he was beaten several times and he does not want to go home before his problem is solved.

Discussion

11.  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).

12.  In assessing the appeal by the applicant, the Board held an oral hearing on 31 October 2019. The Board accepted that the applicant was beaten twice by his stepfather and that the stepfather was a man with extremist religious belief and possibly a member of ISIS. However, the Board found that a reasonable level of protection from the authorities of Indonesia was available and that the applicant’s feared harm was a localised one. The fact that the applicant lived in Batam and Malang for 2 years after his last encounter with his stepfather supported the finding that the applicant could safely relocate to other places in Indonesia like Batam or Jakarta.

13.  Thus, the Board did deal with the applicant’s alleged danger in the Board’s Decision and concluded that the applicant was not entitled to non-refoulement protection on any of the applicable grounds under the USM.

14.  The finding of facts was solely within the ambit of the Board. This court finds nothing wrong in the way the Board reached its conclusion based on the evidence available to the Board.

15.  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 error 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.

16.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be a reasonably arguable claim which enjoyed realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

17.  For reasons aforesaid, the Leave Application is 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

Form CALL-1