ABDUL TANVIR v. TORTURE CLAIMS APPEAL BOARD

HCAL 795/2022

[2025] HKCFI 3156

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 795 OF 2022

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, the name of the putative respondent be amended to “Torture Claims Appeal Board” and the name of the putative interested party be amended to “Director of Immigration”.

2.   The applicant’s application to withdraw the application for leave to apply for judicial review be refused.

3.   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 and filed on 18 August 2022, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board ("the Board") dated 30 June 2022 (“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/2022/HCAL000795_2022_files/the_Board's_Decision.pdf

2.  The Board found that the applicant failed to substantiate his claim for non-refoulement protection on any of the applicable grounds under the Unified Screening Mechanism (“the USM”).  Hence, the Board affirmed the decision of the Director of Immigration (“the Director”) dated 25 May 2021.

Amendments

3.  The applicant named “LI Kwok-wai Member of the Torture Claims Appeal Board” as the putative respondent and the Board as the putative interested party in Form 86, when the Board should be named as the putative respondent and the Director should be named as the putative interested party. 

4.  Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board” and the name of the putative interested party is amended to “Director of Immigration”.

The applicant’s case

5.  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.

6.  In sum, the applicant claimed for non-refoulement protection because he feared that if returned to India, he would be harmed or killed by his business partner named Nezammuddin Shams (“Shams”), who was a councilor from the Trinamool Congress Party, as he could not repay a loan of 3 million rupees to Shams.

Withdrawal of the Leave Application

7.  By his latest affirmation dated and filed on 8 January 2025, the applicant made an ex parte application for leave to withdraw the Leave Application.  The applicant stated in the affirmation that he wanted to cancel all his non-refoulement claims including appeal/JR (if any) in Hong Kong and there was no need to see his non-refoulement case officer. 

8.  There is no evidence to show that the applicant made the above withdrawal application other than out of his own volition.  With this withdrawal application, it is clear that the applicant no longer wishes to proceed with the Leave Application or any oral hearing for the Leave Application.  It is therefore not necessary for this court to afford him any oral hearing for the Leave Application, even though he had requested one before.

9.  However, the Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 that:-

“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

10.  Thus, it is right for this court to deal with the Leave Application instead of leaving the action at large.  The applicant’s application to withdraw the Leave Application is therefore refused, and this court will proceed to consider the merits of the Leave Application.

Grounds for judicial review

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

12.  The applicant did not provide any ground for his intended judicial review in Form 86, nor in his supporting affirmation dated 18 August 2022. The applicant merely stated in his supporting affirmation that the decision of the Board was unfair and unreasonable because his life would still be in danger in his country and he did not want to return to his country.

Discussion

13.  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).

14.  Thus, the applicant cannot ask this court to re-assess the facts of his case, but this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any specific ground being advanced by the applicant for the intended judicial review.

15.  In assessing the applicant’s appeal, the Board held an oral hearing on 12 October 2021.  After due consideration of the evidence and the oral testimony of the applicant, the Board found that the applicant had never been physically harmed by Shams or his men.  Although the applicant’s hair was pulled and he had a knife being pointed at him, he was not injured.  The applicant’s assertion that Shams continued to go to his house and try to track him down was only hearsay evidence from his mother over the phone.  In any event, Shams and his men were only asking about the applicant and did not harm his mother.

16.  The Board also found that the dispute between the applicant and Shams was private in nature.  The applicant had no difficulty in departing India despite Shams, who allegedly had powerful political connections, was chasing him for repayment of the loan.

17.  Thus, the Board did not consider that the alleged ill-treatment on the applicant, both individually and cumulatively, had reached the level of minimum severity.  The applicant’s fear of being harmed or killed when refouled to India was not well-founded.

18.  The Board noted the applicant’s assertion that he tried to report his troubles to the Iqbalpore Police Station but in vain.  There were country of origin information (“COI”) that showed corruption was a problem in India.  However, the Board found from COI that there was state effort in reducing the impact of corruption on public administration and tackling the misconduct of police.  Based on objective COI, the Board found that the applicant could have recourse to the authorities, and there was indeed adequate state protection offered to him against violence as well as other threats should he need it.

19.  As the Board found the applicant failed to establish that he faced a risk of persecution, the Board did not consider it necessary to consider the viability of internal relocation.  The Board was correct to come to this conclusion by adopting the well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that he qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997). 

20.  This court notes that the Board incorrectly regarded BOR 2 Risk[1] as only referring to death penalty and genocide.  However, as held in Re Kulwinder Kaur [2022] HKCA 48, the issues under BOR 2 Risk are not separable from those under BOR 3 Risk.  Upon determining that there is no BOR 3 Risk, there is no arguable ground for any BOR 2 Risk (see also AA v Sweden (2017) 64 EHRR 20 and RM v Gerard Paul Muttrie Esq, HCAL 166/2015, 3 March 2016).

21.  The assessment of evidence and risk of harm was primarily within the realm of the Board.  The applicant’s alleged danger in his home country had indeed been duly assessed by the Board.  This court finds nothing wrong or unreasonable for the Board to reach its decision. 

22.  As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys 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

23.  For reasons aforesaid, the application for leave to withdraw the Leave Application is refused and 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

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