Yaser Shaikh v. Torture Claims Appeal Board

HCAL 340/2020

[2025] HKCFI 2703

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 340 OF 2020

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;

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:

Introduction

1.By way of Form 86 dated and filed on 9 March 2020, 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 4 March 2020 (“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/2020/HCAL000340_2020_files/the_Board's_Decision.pdf

2.The Board found that the applicant’s claims for non-refoulement protection on all the applicable grounds under the Unified Screening Mechanism (“the USM”) failed. Hence, the Board rejected the applicant’s appeal and confirmed the decision of the Director of Immigration (“the Director”) dated 21 November 2018.

Amendments

3.The applicant wrongly named the adjudicator as the putative respondent and the Board as the putative interested party in Form 86, when the Board should be the putative respondent and the Director should be the putative interested party.

4.This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and the name of the putative interested party 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 was indebted to a creditor who was a politician from the India Congress Party, and feared that the creditor would harm or kill him if he were to return to India.

Oral hearing

7.The applicant requested for an oral hearing of his Leave Application and his case was heard on 15 April 2025.

8.The applicant merely reiterated his alleged danger from the creditor who was a politician. He confirmed that the Board was aware of all the facts and he had nothing further to add.

Grounds for judicial review

9.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).

10.However, the applicant failed to identify any ground for the intended judicial review in Form 86, nor in his supporting affirmation dated 9 March 2020. He did not raise any grounds at the oral hearing either.

Discussion

11.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).

12.Without the applicant raising any specific ground, it is difficult for this court to entertain the Leave Application. However, for the sake of completeness, this court will proceed to examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness, and irregularities.

13.In assessing the applicant’s appeal, the Board held an oral hearing on 10 January 2020 and the applicant was present. The Board found that the feared threats from his creditor were just empty threats and not serious. They were merely means to pressurize him to repay the loan. The applicant was only attacked once with fists and kicks and he did not suffer any serious injuries. The treatment he received did not fall within the meaning of torture under section 37U(1) of the Immigration Ordinance, Cap 115.

14.Thus, the Board found no evidence that the applicant would be subjected to torture if he were to be sent back to India. Likewise, there was no evidence that supported his claim regarding risk to life.

15.Moreover, while noting that corruption was not uncommon amongst the police force and other government officials in India, the Board found that there had been reforms going on in India to improve the efficiency and to combat corruption of the police force. The applicant had never attempted to seek help from the police while he was in India. It was therefore only the applicant’s speculation that the police would not help him if he needed assistance. Reasonable state protection was available to the applicant.

16.In assessing the viability of internal relocation for the applicant, the Board found that even if the applicant’s creditor was a powerful and influential figure in the applicant’s home city, there was no evidence to suggest that his creditor has power and influence beyond the area where the applicant resided. There was also no evidence that the creditor had the resources to locate the applicant had he moved to stay in other parts of the country. Internal relocation was therefore viable for the applicant.

17.The finding of facts is within the sole ambit of the Board. This court finds no errors of the Board in reaching its decision based on all the evidence before it.

18.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.

19.In Po Fun Chan v 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. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

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

Dated the 2^nd day of July 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