FAISAL OMAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 698/2020

[2025] HKCFI 3984

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 698 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 oral submissions by the Applicant in open court;

1.   The Form 86 is amended on the Court’s own motion, naming only the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office as the Putative Respondent and only the Director of Immigration as the Putative Interested Party;

2.   Application for leave to apply for Judicial Review be dismissed.  

Observations for the Applicant:

Introduction

1.  The Applicant is a citizen of India.  By a Form 86 dated and filed on 20 April 2020 (“Form 86”), and a supporting affirmation also dated and filed on 20 April 2020 (“the Affirmation”), he sought leave for judicial review of a decision of the Torture Claims Appeal Board (“TCAB”) (which is also a decision of the Non-Refoulement Claims Petition Office (“NRCPO”) dated 9 April 2020 (“TCAB Decision”) [1].

2.  The Applicant sought and appeared at an oral hearing of his application.  I will deal below with the submissions he made at such. 

3.  I have amended the Form 86 to properly identify the putative respondent and the putative interested party.  I will use the abbreviations and definitions from the TCAB Decision unless otherwise specified herein. 

Background

4.  This is set out in the TCAB Decision.  I will not repeat the contents thereof, but in summary:

a.  The Applicant claims non-refoulement relief on the basis that if he were sent back to India, he would be harmed or killed by Bapi;

b.  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 25 July 2018 (“Director’s Decision”);

c.  The Applicant then petitioned/appealed to the TCAB/NRCPO.  The latter determined the matter without an oral hearing by way of the TCAB Decision, in which it held that the Applicant was not entitled to non-refoulement relief on any of the relevant bases and confirmed the Director’s Decision. 

Legal Principles

5.  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). 

6.  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). 

7.  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

8.  As the Applicant has not identified or set out any grounds of judicial review in the Form 86 or Affirmation, there is 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. 

9.  However, given the seriousness of the issues at hand, I have 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.  

10.  The TCAB Decision set out the Applicant’s procedural and immigration history, including that the decision-maker had decided (having reviewed the papers and had regard to the leading case of ST v Betty Kwan [2014] 4 HKLRD 277 (CA)) that the appeal/petition could be justly determined without an oral hearing (Paragraphs 1 to 9).  This was followed by the details of the Applicant’s case and claims as set out in the documents before the TCAB/NRCPO (Paragraphs 10 to 12), and by the approach taken as to credibility, evidence, and other salient matters such as burden and standard of proof, admissibility, non-state actors, and COI, reference to the high standards of fairness and principles relevant to obtaining information as explained in TK v Jenkins & anor. [2013] 1 HKC 256 (CA), and observations on the documentary evidence submitted by the Applicant (Paragraphs 13 to 22). 

11.  The TCAB/NRCPO then considered the case on the facts and evidence as advanced by the Applicant.  It concluded, inter alia, that (Paragraphs 23 to 54):

a.  Bapi and his friends were non-state actors, there being no suggestion that Bapi was connected with any government authority or the state of India or that Bapi and his friends were public officials or acting in a public capacity, and as no political party, organisation or the government was involved in what was a private dispute with Bapi;

b.  Even on the facts advanced by the Applicant it was mere speculation that he would be at future risk of harm if refouled to India, and the risk of harm from Bapi (whether actual or perceived) was very remote and not imminent.  The previous harm inflicted on the Applicant was of low intensity and did not attain the minimum level of severity.  Further, there was also no evidence that Bapi or his friends’ ill-treatment of the Applicant was with an intention relevant to Torture Risk; and

c.  On the facts and COI there was no suggestion that the police would not render assistance to the Applicant.  Rather, such indicated that protection would be provided if a complaint was made, and in any event there were other channels for him to complain to.  Also, as conceded by the Applicant it was his own volition not to take the potential threats from Bapi to the police or other authorities, rather than the Applicant having been refused assistance.  Hence there was no evidence the state was unwilling or unable to afford him protection, whether it be for a Convention or any other reason.

12.  The decision-maker then applied her findings and found that Persecution Risk had not been established due to the lack of a Convention reason and as state protection was available (Paragraphs 54 to 62), that BOR 2 Risk and BOR 3 Risk were not made out on the facts (and in relation to the latter having particular regard to state protection) (Paragraphs 63 to 74), nor was Torture Risk given the failure to meet the elements thereof, including with respect to acquiescence (Paragraphs 65 to 79).  The TCAB/NRCPO then briefly addressed the question of internal relocation (Paragraphs 80 to 85) before setting out its conclusions that for reasons above none of the four types of risk had been established, and confirmed the Director’s Decision (Paragraphs 86 to 90).

13.  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.  In doing so I have borne in mind the nature of the facts and evidence as apparently advanced before the TCAB/NRCPO alongside its consideration and application of the relevant authorities, its assessment, reasoning, and findings regarding the risk of harm and state protection, and consequently its findings as to Torture Risk, Persecution Risk, BOR 3 Risk, and BOR 2 Risk, which are all matters primarily within its province. 

14.  At the hearing, the Applicant initially indicated that he intended to submit some further documents.  However, he did not end up applying to do so in relation to most of them[6], or that it was enough that they had previously been submitted to and already been considered in the Director’s Decision.  Given the findings in and my analysis of the TCAB Decision, I also do not consider that his oral claim that he wanted “leniency and time.  If conditions in my country are better, then [I will] go back myself” is relevant to or assists his application. 

15.  There is hence no basis for the court to intervene by way of judicial review, and I am not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success. 

Conclusion

16.  In the circumstances I have ordered that the application for leave to apply for judicial review be dismissed and made the other orders above. 

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