HOSSAIN SHAHID v. TORTURE CLAIMS APPEAL BOARD

HCAL 3552/2019

[2025] HKCFI 5076

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3552 OF 2019

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 in open court;

1.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, 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 be “Torture Claims Appeal Board’s decision dated 1 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 and filed on 29 November 2019, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision received by him on 26 November 2019 by hand.

2.  The Torture Claims Appeal Board (“the Board”) made a decision dated 1 November 2019 (“the Board’s Decision”) in respect of the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 27 January 2017 (“the Director’s Decision”), which rejected the applicant’s non-refoulement claim. At the hearing before this court on 7 August 2025, the applicant confirmed that the Board’s Decision was the subject of the Leave Application. The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003552_2019_files/the_Board's_Decision.pdf

3.  The Board found that the applicant failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”) in his claim for non-refoulement protection. Hence, the Board confirmed the Director’s Decision.

Amendments

4.  In Form 86, the applicant named himself as the putative respondent and “Torture claim department and Immigration department” as the putative interested parties.

5.  In fact, the Board should be the putative respondent and the Director should be the putative interested party.

6.  Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and to amend the name of the putative interested party to “Director of Immigration”.

7.  As aforesaid, the applicant confirmed that the decision in respect of which relief is sought in the Leave Application should be the Board’s Decision. Thus, it is so amended on this court’s own motion.

The applicant’s case

8.  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.

9.  In sum, the applicant claimed for non-refoulement protection because if returned to India, a moneylender named Farhad, who was a leader of the All India Trinamool Congress (“TMC”), would harm or kill him as he was unable to repay the loan obtained from Farhad.

Oral hearing

10.  The applicant requested for an oral hearing of the Leave Application. His case was heard on 7 August 2025.

11.  At the hearing, when this court asked the applicant to elaborate on the grounds for his intended judicial review contained in the 4-page document that was annexed to his supporting affirmation dated 29 November 2019, he only asked for more time to submit further documents. When asked what documents he wanted to submit, he merely replied that they were documents related to his problems in India, including medical reports related to his attacks and a letter written by his family to the local police about the threats they received regarding the loan he obtained. He added that he needed more time to check if he still had some documents in India.

12.  When this court asked the applicant why he did not arrange to get all the documents throughout the years, the applicant just said that he had forgotten what he had written in his application.

Grounds for judicial review

13.  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).

14.  However, the applicant failed to advance any grounds for his intended judicial review in Form 86.

15.  In the 4-page document annexed to his supporting affirmation, he merely stated that he did not receive any notice for the Board’s hearing and hence he was absent for the hearing. He had moved to a new address and did not inform the Immigration Department in time. He had more documents to submit and therefore if he were given a chance to appear before the Board and to submit all his documents, he could have substantiated his claims. He added that he felt unsatisfied and sorrow after receiving the Board’s Decision. Moreover, the current political and other situation in India was dangerous.

16.  As aforesaid, the applicant did not elaborate on any of the matters raised in the document at the oral hearing before this court. He merely asked for more time to submit further documents in support of his non-refoulement claim.

Discussion

17.  First of all, if the applicant intends to submit new evidence to this court for consideration of his non-refoulement claim, it is not permissible. As held in Trinh Thuy Huyen v Torture Claims Appeal Board [2024] HKCA 1090, the Board had no duty to make investigation into any matter without the applicant raising it and it should not be considered by this court at this stage.

18.  Further, as held in Nupur Mst v Director of Immigration [2018] HKCA 524, due to the difference in the role of the court in a judicial review and the role of the primary decision-makers, an applicant cannot rely on materials which have not been produced before the Board or the Director to contend that the latter erred in not taking those into account unless the decision-makers have a positive duty to elicit such materials on their own volition.

19.  Thus, the applicant cannot rely on any materials not placed before the Board as a ground for his intended judicial review, and there is no reason for this court to give him time to submit more evidence.

20.  Similarly, the applicant cannot rely on the current political or other situations in India to challenge the Board’s Decision.

21.  The main complaint of the applicant, namely that he was not notified of the Board’s hearing and hence he was absent for it, cannot assist the applicant either.

22.  This court noted that the Board assessed the applicant’s appeal/petition without an oral hearing and adopted the approach of a re-hearing by examining all the documentary evidence afresh. The Board’s reasons for not having an oral hearing were that after reviewing the whole case of the applicant, it found that no worthwhile and effective representation could be made and there would be no procedural unfairness to the applicant if his appeal was determined without an oral hearing.

23.  There is no absolute right to an oral hearing. The question of whether an oral hearing should be afforded must be decided by the adjudicator at the appeal/petition stage after considering all relevant circumstances. Ultimately, what is in issue is the question of fairness, and in the present context, high standards of fairness are involved (see St v Betty Kwan and the Director of Immigration, CACV 115/2013).

24.  Thus, it was not a must for the applicant to have an oral hearing before the Board. The Board had considered all the matters raised by the applicant in relation to his non-refoulement claim, including all the four alleged attacks by Farhad and his men and the resulting injuries, Farhid’s affiliation with the TMC, his doubt about the capabilities of the Indian police to protect him, and the reasons he gave for not being able to relocate to other places in India.

25.  This court agrees with the Board that an oral hearing was not necessary. There was no procedural unfairness to the applicant when everything he raised had been fully assessed and addressed by the Board.

26.  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, supra).

27.  Thus, even though the applicant has failed to establish any valid ground for challenging the Board’s Decision, this court will still scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.

28.  As can be seen from the Board’s Decision, the Board had duly considered the applicant’s case. The Board accepted the applicant’s account of all the four attacks that he encountered and the injuries he allegedly suffered as a result. However, the Board found that on all those occasions, the creditor and his underlings could have harmed him more seriously or even killed him as they outnumbered him and carried fatal weapons, if they had the real intention to do so, but they did not.

29.  The Board found that all the verbal death threats against him made by the creditor or his underlings were merely bare threats which had never been materialized. His creditor might want to press for repayment but there was no objective evidence showing that his creditor had the intention to seriously harm or kill him.

30.  As to the question of state protection, the Board found that even if accepting that the concerned police officer did not perform his duties properly when the applicant tried to file his complaint, this fact alone was insufficient to show that the Indian authority would fail to discharge its duties or tolerate any unlawful and allusive behavior committed by an individual as systemic practice.

31.  Furthermore, there was no evidence of Government or person acting in an official capacity being involved in the loan dispute at all. There was country of origin information (“COI”) showing that a functioning government which was willing to and capable of protecting its citizens. Therefore, the Board was of the view that reasonable state protection was available to the applicant if he resorted to the Indian authorities after his return.

32.  The applicant’s fear of ill-treatment did not fall within the definition of persecution in that it was purely a private matter and was not on account of race, religion, nationality, membership of a particular social group or political opinion.

33.  Despite its findings above, the Board also stated explicitly in the Board’s Decision that if the applicant had shown that he would face a real risk of persecution, such risk was confined to his local area and alternatives were available and reasonable, which would further lower or negate the perceived risk. Internal relocation was permissible in India and the applicant had many options for relocation. It would be very difficult for his creditor to locate him among such a large population, and it was doubtful that his creditor had large influence and sufficient resources to locate him in such a huge country. The applicant did not have any contact with his creditor in India, and hence the creditor could not have known his return to other places in India. The applicant, being an able-bodied adult who had 10 years’ education and 6 years’ trading experience, could work anywhere. If he needed to, he could reasonably relocate to elsewhere in India and earn a living there.

34.  Thus, after due consideration of the law and all the evidence as presented by the applicant, the Board found that the applicant was not entitled to non-refoulement protection on any of the applicable grounds under the USM.

35.  The finding of facts, including the assessment of risk of harm and COI materials, was solely within the ambit of the Board. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

36.  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 errors 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.

37.  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

38.  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