AMIT KUMAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 803/2020

[2025] HKCFI 2863

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 803 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.  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 dated and filed on 4 May 2020 (“Form 86”), which was accompanied by an supporting Affirmation also dated and filed on 4 May 2020 (“the Affirmation”), the Applicant sought leave to commence a judicial review.

2.  The Applicant sought an oral hearing of his leave application. At the hearing, he said he had nothing to add to the papers he had submitted.

3.  The Form 86 refers to the Applicant’s Recognizance Form and to a decision of the Torture Claims Appeal Board (“TCAB”), which is also a decision of the Non-Refoulement Claims Petition Office (“NRCPO”), made on 22 April 2020 (“the TCAB Decision”)[1] as the Judgment, order, decision or other proceeding in respect of which relief is sought.

4.  While the Form 86 mentions the Applicant wants to apply “TO JUDICIAL REVIEW AGAINST THE RESULT OF MY APPEAL TORTURE CLAIM IMMIGRATION DEPARTMENT DIRECTOR OF IMMIGRATION”, the Affirmation only exhibits the TCAB Decision, and does not mention or exhibit the relevant decision of the Director of Immigration (“the Director”) which is dated 25 May 2018 (“Director’s Decision”).

5.  I therefore did and do not see that the Applicant was clearly seeking leave to commence a judicial review of the Director’s Decision. However, if and insofar as he sought such leave, that application stands only to be rejected, and I do so. This is because such an application (if made) is on the merits fundamentally misconceived given the existence and implications of the two-tier system and the lack of exceptional circumstances justifying such an application (Moshsin Ali [2018] HKCA 549; Yeni Setyawati v Torture Claims Appeal Board [2019] HKCA 1310).

6.  As the Form 86 only names the Immigration Department and the Director of Immigration (“the Director”) as the putative respondents, and names the Applicant himself as the putative interested party, I have amended the Form 86 of my own motion to name the TCAB/NRCPO as the only putative respondent, and the Director of Immigration as the putative interested party.

Background

7.  The Applicant’s background and case as to the incidents underlying his claim for non-refoulement relief, the immigration and procedural history leading up to the TCAB Decision, and his evidence to the TCAB/NRCPO, are set out in the TCAB Decision (Paragraphs 1 to 45). For the sake of concision, I will not repeat them, but in essence:

a.  The Applicant’s claim for non-refoulement relief on the basis of Torture Risk[2], BOR 2 Risk[3], BOR 3 Risk[4], and Persecution Risk[5] stems from a fear that he will be harmed or killed by party members of the Bharatiya Janata Party (“BJP”) due to a dispute over land which is owned by his family, and which Gurdayal Singh (a Counsellor of the BJP) seeks to own; and

b.  The said non-refoulement claims were rejected by the Director’s Decision. The Applicant then filed a petition to the TCAB/NRCPO, and an oral hearing was held by the TCAB/NRCPO on 26 November 2019. The TCAB/NRCPO then rejected the said non-refoulement claims in the TCAB Decision.

8.  As recorded in the TCAB Decision, at the hearing before the TCAB/NRCPO, the Petitioner submitted a written statement and gave oral evidence to the TCAB/NRCPO, on which he was questioned (Paragraphs 25 to 45).

9.  No grounds for judicial review are set out in the Form 86 or the Affidavit. The latter merely exhibits the TCAB Decision, and repeats the Applicant’s claim that he is in Hong Kong to save his life from Gurdayal Singh, that he was torture “mantly(sic) by them”, managed to escape to Hong Kong from physical torture and death, that he has a problem still and that pending forced return will result in danger “and sick death”.

Legal Principles

10.  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, (HCAL 21/2015, 22 December 2016) per Chow J. (as he was then) at §142).

11.  It is trite that judicial review is not 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: see 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.

12.  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

13.  The Applicant has not identified or set out any grounds of judicial review. There is hence no allegation of any procedural unfairness in relation to the TCAB Decision. Nor is there any allegation of any error of law in the TCAB Decision, or that any portion of the TCAB Decision is irrational/fails to meet the enhanced Wednesbury test.

14.  Nevertheless, 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.

15.  As mentioned, the TCAB Decision summarises the Applicant’s case and the evidence that he gave before the TCAB/NRCPO, as well as several exchanges on salient topics such as the evidence of alleged ownership of the land in question, and the alleged assaults (Paragraphs 8 to 45).

16.  The TCAB/NRCPO then took the view that although the Applicant had made broadly consistent claims, there were several major inconsistencies in relation to the details. The first and most significant was as to the ownership of the land, it also being noted that there was no supporting documentation. Others related to the details of the assaults, and his alleged status in relation to the Indian National Congress party (“INC”). While the TCAB/NRCPO acknowledged the possibility that a person’s memory can be affected by the passing of time, it considered that it was reasonable to expect that the Applicant would recall exactly who in his family owned the land, and where the second alleged assault took place. It found that such inconsistent evidence on integral matters undermined his claims and overall credibility, and that the Applicant’s responses when these concerns were put to him at the hearing were “hesitant, lacking in detail, and unconvincing” (Paragraphs 46 to 55). The TCAB then explained why it gave no weight to certain documents submitted by the Applicant in support of his claim (Paragraph 56).

17.  Having assessed the evidence, the TCAB did not accept that the Applicant, his father, or his family owned land that was sought by Gurdayal Singh and/or the BJP, that the Applicant had been threatened by Gurdayal Singh or assaulted by him and/or others, and that the Applicant or his parents sought police intervention because of such threats and assaults. It found that the Applicant was not hospitalised due to any claimed physical assault by Gurdayal Singh and/or the BJP, and that there was no refusal of police protection (Paragraphs 57 to 58).

18.  As a result, the TCAB was not satisfied that the Applicant had provided a truthful account of the events leading to his departure from India, and of his reasons for not wanting to be refouled. It was satisfied that the Applicant did not face a real chance of harm now or in the reasonably foreseeable future in India from Gurdayal Singh, BJP members, or any other person (Paragraphs 59 to 60).

19.  The TCAB then went on to find, in each case having regard to reasons that it had set out and/or outlined earlier, that it was not satisfied that there was any Torture Risk, Persecution Risk, BOR2 Risk, or BOR3 Risk. Those claims hence failed and the Director’s Decision was affirmed (Paragraphs 61 to 78).

20.  Despite rigorous examination and anxious scrutiny, I do not see that the Applicant has any reasonably arguable case of procedural unfairness (even bearing in mind the need for a high standard of fairness), error of law, and/or irrationality/failure to meet the enhanced Wednesbury test in relation to the TCAB Decision. This is particularly so as to and given the assessment, reasoning, and findings rejecting the Applicant’s evidence and story in support of his claim, and consequently the risk of harm, Persecution Risk, Torture Risk, BOR 3 Risk, and BOR 2 Risk, which are all matters primarily within the province of the TCAB. Given the issues, context, and evidence before it, the TCAB/NRCPO gave adequate reasons for reaching its conclusions, and that I do not see any reasonable argument that it misunderstood and/or misapplied the relevant standards of proof (TK v Jenkins [2013] 1 HKC 526 at §§19-31, 52).

21.  There is hence no basis to interfere with the TCAB/NRCPO’s findings of fact on matters which are primarily within its province.

22.  Given the TCAB Decision and the aforesaid analysis, I do not see how the claims made in the Affirmation are relevant or substantiated. I therefore reject them.

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

Conclusion

24.  In the circumstances I have ordered that the Form 86 be amended as described above, and 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

Form CALL-1