Application for Leave To Apply for Judicial Review

HCAL 904/2020

[2025] HKCFI 5300

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 904 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 the Applicant being absent in open court

Order by Deputy High Court Judge (Non-refoulement Claims) Teresa Wu:

(1)   Form 86 be amended, naming only the Torture Claims Appeal Board / Non-refoulement Claims Petition Office as the Putative Respondent and the Director of Immigration as the Putative Interested Party.

(2)   The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.By Form 86 filed on 14 May 2020, the Applicant seeks leave to apply for judicial review (“the Leave Application”) of (i) the Director of Immigration (“the Director”)’s decision dated 26 December 2018 (“the Director’s Decision”); and (ii) the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)’s decision dated 13 December 2019 (“the Board’s Decision”).

2.The Applicant has incorrectly stated the dates of both decisions.  The correct date of the Director’s Decision is 26 November 2018, and the correct date of the Board’s Decision is 25 March 2020. The Board’s Decision affirmed the Director’s Decision, which had rejected the Applicant’s non-refoulement claim on all applicable grounds under the Unified Screening Mechanism (USM).  

Background

3.The Applicant’s personal background, the incidents alleged in support of his claim that he would be harmed or killed in India, together with the relevant immigration and procedural history, were set out comprehensively in the Board’s Decision.  It is unnecessary to repeat them, and for completeness’ sake, reference can be made to that decision, the hyperlink to which is included below[1].  Unless otherwise specified, the Board’s abbreviations and descriptions are adopted herein.

Discussion

4.The Applicant is absent from the oral hearing requested by him.  On the authority of Re Abdus Salam, CACV 125/2019 (unreported, 3 October 2019) [2019] HKCA 1091, I proceed to deal with the Leave Application based on the materials placed before me. 

5.First of all, a Director’s Decision is not subject to judicial review once an appeal to the Board is made as the latter’s decision is final and supersedes the former (see Re Moshsin Ali [2018] HKCA 549). 

6.The Applicant has not identified any valid grounds for judicial review in his Form 86 (see Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015 (unreported, 22 December 2016) at §142).  In his supporting affirmation, he has merely reiterated that he was tortured, managed to escape to Hong Kong for his life, and that the “problem” remains unresolved, with his life continuing to be at risk.  However, he has not pointed to any procedural or other public law errors allegedly committed by the Board in reaching its decision. 

7.I have reminded myself, in view of the seriousness of the issues involved, to apply the  enhanced standard of scrutiny required by law (see Nupur Mst v Director of Immigration [2018] HKCA 524at §14).  The applicable burden and standard of proof, together with the relevant law and key legal principles, were properly set out and applied by the Board.  It is well-established that the Board was primarily responsible for assessing the evidence, COI information, risk of harm, availability of state protection, and the viability of internal relocation, and it was squarely within the Board’s remit to make determinations as follows:

(1)  Having considered all the evidence submitted by the Applicant, the Board formed the view that the nature and low intensity of the ill-treatment previously experienced by the Applicant from the SAD people was indicative of only a minimal future risk of harm, were he to return to his country.

(2)  The Board was not persuaded that there was a real chance that the Applicant would suffer serious harm in the future if he were to be returned.

(3)  In any event, throughout all interactions involving the Applicant, there was no involvement at any stage by a public official or any person acting in an official capacity.  There was no, or no reliable, evidence that the SAD people concerned had any connection with the Indian government.  As the Board found, those individuals were non-state actors.

(4)  There was also no, or no reliable, evidence that the government, state agents, or other authorities in the country had acquiesced in the alleged ill-treatment of the Applicant.  The Applicant did not lodge any complaint with the police, higher authorities, or the courts.  As confirmed by the COI information, the state mechanisms and complaint procedure were in place.

(5)  Accordingly, there was no, or no reliable, evidence that the police, any public official, or any person capable of exercising the authority of the state had any connection with the SAD people involved.  Nor was there reliable evidence that the Applicant had suffered physical or mental harm of the requisite severity.  As found by the Board, the Applicant had sustained only minor injuries in a single assault. 

(6)  There was also no, or no reliable, evidence that the alleged perpetrators had ill-treated the Applicant with any intention falling within the definition of torture, or that the alleged ill-treatment bore any relevance to the interests and/or benefit of the Indian government.  Nor was there any reliable evidence that the Applicant had a well-founded fear of persecution, or that the state of India was unwilling or unable to afford him protection.

8.Based on the aforesaid findings, the Board therefore concluded that the Applicant had failed to establish a well-founded fear of being persecuted for a Convention reason.  Nor had he demonstrated that there were substantial grounds for believing he would face a real risk of torture or CIDTP upon return.  There was no real chance that the SAD people would seek to harm or kill him, nor that the state of India would be unwilling or unable to provide protection.  The elements required to establish a claim of torture were also not met.

9.As the Applicant has not demonstrated any basis or ground to challenge the legality, rationality, or fairness of the decision above, the Court should not usurp the role of the Board as the primary decision-maker (see Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246; Re Masoom Parvez [2018] HKCA 163; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst (supra) at §14).

10.In the premises, as I am not satisfied that the Applicant’s intended challenge to the Board’s Decision is reasonably arguable with any realistic prospects of success for the reasons set out above (see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676), I have refused leave.

Conclusion

11.Accordingly, I make an order that the Leave Application be dismissed.

Dated the 18^thday of November 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