MOHAMMAD MUKHTAR ALAM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1435/2021

[2026] HKCFI 3705

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1435 of 2021

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

1.   The Form 86 be amended to name the Board as putative respondent and the Director of Immigration (instead of the Board) as a putative interested party; and

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

Observations for the Applicant:

1.  By a Form 86 filed on 15 October 2021, the Applicant sought leave for judicial review of the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”) dated 2 September 2021 (“the Board’s Decision”), which was made after a hearing on 14 May 2021 and 3 June 2021 of a petition/appeal against the decision of the Director of Immigration (“DI”) dated 1 August 2017.  A copy of the Board’s Decision can be seen by the following hyperlink[1].

2.  The Applicant is an Indian national and a Muslim.  His non-refoulement claim was based on a feared risk of harm from members of the All India Trinamool Congress (“TMC”) and the officer-in-charge of the Ekbalpore Police Station in West Bengal, India.  He alleged that TMC members targeted, abducted and assaulted him with hockey sticks and a chopper due to his election promotion work for the Communist Party of India (Marxist), an opponent to TMC.

3.  After the episode of abduction, the Applicant claimed that he had made a complaint to the local police; he said he was later requested to withdraw the complaint but he refused.  Later on, he said he was threatened with a false charge by the local police and survived a subsequent attempt by TMC members to burn him with kerosene.  This ongoing campaign of violence and intimidation ultimately forced him to spend nearly two years fleeing in hiding across India before seeking refuge in Hong Kong.

4.  Following a two-day oral hearing in which the Applicant was represented by a Duty Lawyer, the Board dismissed the appeal/petition and upheld the DI’s decision to reject his non‑refoulement claim.  The Board found the Applicant’s evidence filled with material contradictions regarding the number of persons abducting him, the details of the attempted burning and whether/how he could identify one of his enemies’ voice in a phone call.

5.  The Board also had regard to his timeline of events, noting that the Applicant chose to move back to the high-risk local area after having stayed in Mumbai without anything eventful for a period.  His purchase of a return ticket from Hong Kong to Hong Kong was found to be inconsistent with the fear of an imminent risk to his life.  The Board ruled that the Appellant faces no genuine risk of harm in India.  Furthermore, the Board held that he could internally relocate to other parts of India (such as Mumbai or Delhi) to avoid the risk of harm, if any.  In that connection, it was found that his being a Muslim would not cause any induly harsh or unreasonable condition or his internal relocation.

6.  The Applicant outlines his grounds of judicial review in an exhibit to his supporting affirmation.  The grounds are summarized by this Court as follows:

(1)  Ground 1: It is argued that the Board’s adjudicator failed to consider all applicable grounds of non-refoulement protection.  Specifically, the Board failed to properly assess the risks of violation under Articles 2 (Right to Life) and 22 (Equality before and equal protection of law) of the Hong Kong Bill of Rights Ordinance.

(2)  Ground 2: It is contended that the Board was “wrong” in accepting the finding that “the only fact established is that the applicant is an Indian male, he faces no risk of any harm at all to conclude the persecution risk failed”.

(3)  Ground 3: The Applicant argued that the Board’s Decision was irrational.

(4)  Ground 4: The Applicant said he was told his appeal(/petition) against DI has merits and requested proper legal support for handling what is a very complicated matter of judicial review.

7.  During the oral hearing before this Court, the Applicant added that he had an initial hearing in 2019 at a North Point location before a different adjudicator.  After that, he experienced a 1.5-year delay without any decision, with the DI failing to provide any explanation for the delay or the subsequent shift to a new hearing process in 2021.  He further mentioned something going to the substance of his non-refoulement claim and what happened to him and his family members in India.

This Court’s Decision

8.  I will first deal with the assertion concerning a hearing in 2019.  There is no record before this Court showing its existence.  Even if there was indeed an aborted hearing in 2019, the fact that the Applicant had a 2-day hearing in 2021 with legal representation shows that the abortion of a previous hearing had not prejudiced the procedural fairness to him.  There is no substance in the complaint.  I will next turn to the 4 grounds specified in the affirmation.

Ground 1

9.  The Board evaluated all applicable grounds, including torture risk under the Immigration Ordinance, risk of violating the Applicant’s right to life (BOR 2), risk of violating his right not to be subjected to torture and cruel, inhuman or degrading treatment or punishment (BOR 3) and persecution risk.  

10.  In paragraphs 128-139, the Board also comprehensively addressed other rights under Articles 5, 14, 15, 16, 18, 21, and 22 of the Bill of Rights.  The Board remarked, in paragraph 136, that those other rights (except Article 15 right) are “derogable” and thus cannot serve as separate and independent grounds for non-refoulement protection.  In paragraph 138, Article 15 (freedom of thought) was found to be not engaged.  Those findings are, in my view, correct in law.

11.  In these circumstances, an argument that the Board had failed to assess all applicable grounds is not reasonably arguable.

Ground 2-3

12.  The Board conducted a meticulous examination of the evidence that exposed the Applicant’s narrative as being incredible. The details can be found in paragraphs 39-101 of the Board’s Decision.  In my judgment, the Applicant is only dissatisfied with the outcome, but is unable to point to what relevant factor had the Board missed and what error had the Board committed.  From a reading of the Board’s reasoning, it is plain that a general allegation of irrationality must be rejected.

Ground 4

13.  Ground 4 is neither here nor there.  The Applicant was told his appeal/petition against DI’s first-tier decision has merits.  That was his Duty Lawyer’s advice.  He had already obtained the benefit of legal representation in the appeal/petition process by reason of that advice.  That advice certainly could not override the Board’s Decision. and it is irrelevant to this Court’s determination of the present application. If what the Applicant was talking about is to have Legal Aid’s assistance for this judicial review, it is a matter for him to apply to the Legal Aid Department.  In any event, this Court sees no merit in the proposed judicial review. 

14.  Having vigorously considered the Applicant’s grounds and the Board’s Decision, I am of the view that none of the grounds is reasonably arguable.  The leave application is accordingly 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