Hossain Manawar v. Torture Claims Appeal Board

HCAL 3882/2019

[2025] HKCFI 1278

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3882 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 the applicant being absent in open court;

Order by Deputy High Court Judge Michael WONG:

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 for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.By way of Form 86 dated 30 December 2019, 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 2 December 2019 (“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/2019/HCAL003882_2019_files/the_Board's_Decision.pdf

2.The Board decided that the applicant was unable to establish a real risk pertinent to any of the applicable grounds under the Unified Screening Mechanism (“the USM”).  Hence, the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 27 August 2018 and confirmed the Director’s said decision.

Amendments

3.In Form 86, the applicant named himself as the putative respondent when it should be the Board.  The applicant also named the Board and the Immigration Department of Hong Kong as the putative interested parties when it should be the Director.  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

4.The applicant’s case (as detailed in the Board’s Decision) can be briefly summarised as follows:-

(1)  The applicant is a male Indian born in 1974 and brought up in Ekbaipure, Khidderpore, Kolkata, India.  He is a Sunni Muslim and his religion is Islam.  He speaks Hindi.

(2)  The applicant received 7 years of formal education, and worked as a salesman in Kolkata from 2011 to 2016.  From early 2016 to March 2017, the applicant ran his garment and electronics shop in Kolkata.

(3)  The applicant arrived in Hong Kong on 16 May 2016.  He surrendered himself to the Immigration Department on 31 May 2016 and lodged a non-refoulement claim on 12 July 2016.  

(4)  The applicant claimed that if refouled, his creditor, Rajesh (“the Creditor”), would harm or kill him, as he was unable to repay a loan of 1 million Indian Rupees to the Creditor. 

(5)  The Director rejected the applicant’s claim on 27 August 2018, and the applicant filed an appeal/petition against that decision to the Board on 10 September 2018.

Grounds for judicial review

5.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).

6.However, the applicant did not advance any ground for his intended judicial review in Form 86 nor in his supporting affirmation dated 30 December 2019.  He just repeated the background of his case in the supporting affirmation, but added that the situation in India is more dangerous for him now.  The reasons are that the Indian government had passed a new bill against Muslims and he is a Muslim; and that the Creditor had become more powerful after the election of the ruling party.

Oral hearing

7.The applicant requested for an oral hearing of the Leave Application. However, the applicant was absent at the hearing on 4 March 2025.

8.As held in Re Abdus Salam [2019] HKCA 1091, an application for leave to bring judicial review should not be dismissed for want of prosecution merely because the applicant failed to attend the oral hearing of the leave application.  The correct approach is to treat the applicant as having withdrawn his request for a hearing by reason of the absence at the hearing, and to proceed to determine the leave application on its merits.

9.Thus, this court will proceed to consider the merits of the Leave Application based on the written materials before this court.

Discussion

10.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).

11.In Po Fun Chanv Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be a reasonably arguable claim which enjoyed realistic prospects of success. 

12.The applicant did not advance any specific ground for the intended judicial review, except making his bare assertion that his life would be in danger in his home country.  However, for the sake of completeness, the court will still examine and scrutinize the Board’s Decision for any error of law, procedural unfairness and irregularities.

13.In assessing the appeal by the applicant, the Board adopted the approach of a re-hearing.  The Board examined all the documentary evidence afresh and held an oral hearing on 28 August 2019.  The applicant was present and was given the chance to present his case and grounds of appeal to the Board in person.

14.The applicant confirmed to the Board the truthfulness and correctness of the contents of his Non-refoulement Claim Form as well as the record of his answers to the interviewing immigration officer without making any amendment, addition or deletion.  However, the applicant’s testimony at the hearing was significantly contradictory to the information he gave to the Immigration Department during the first tier screening.  There was a different version of the event that gave rise to the applicant’s claim.  

15.For example, the applicant gave unreconciled accounts of the name of the Creditor (whether Rajesh or Ekral); the time the loan was taken out (whether in 2016 or 2011); and the times when the Creditor visited his home to urge him to repay the debt (whether within 1 month from May 2016 or 900 times from 2014 to 2016).

16.The Board carefully re-assessed the applicant’s claims on those matters asserted by him and found the applicant’s case absolutely against common sense. Thus, the Board rejected his claims, which were full of glaring discrepancies.

17.The Board also re-assessed the applicant’s claim on all the applicable grounds under the USM, namely:-

(a)  risk of persecution with reference to the non-refoulement principles under Article 33 of the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol;

(b)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance;

(c)  risk of violation of right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance; and

(d)  risk of torture under Part VIIC of the Immigration Ordinance.

18.After due consideration of the law and the evidence as presented by the applicant, the Board found that the applicant’s feared ill-treatment, risk of right to life, risk of torture and risk of persecution were not established.  Whoever the Creditor was, the applicant had never even been harmed or injured because of his failure to repay a personal loan.  Hence, the Board concluded that the applicant was not entitled to non-refoulement protection under any of the applicable grounds. 

19.In assessing the availability of state protection and the viability for the applicant’s internal relocation, the Board had referred to the then most updated country of origin information for the applicant’s country from different sources.  The Board concluded that the applicant failed to demonstrate any ill-treatment or serious harm, but in any event, state protection is available and internal relocation is viable.

20.As to the new allegations that the Indian government passed a new bill against Muslims, and the Creditor became more powerful after the election of the ruling party, they were never asserted before the Board.  In fact, the Creditor was not even Rajesh in the applicant’s testimony before the Board.  There was no error on the part of the Board in not making findings on the information that was not placed before it for consideration.  It is not right for this court to consider such new allegations, as the court does not usurp the role of the primary decision-makers (see Re Zunariyah [2018] HKCA 14).

21.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 error of law, procedural unfairness or irrationality in the Board’s Decision.

22.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.  Thus, the intended judicial review has no realistic prospects of success at all, and the Leave Application must be dismissed.

Conclusion

23.For reasons aforesaid, the Leave Application is dismissed.

Dated the 2^nd day of April 2025

.

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