Peral Mohammad Abdul Sathar v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 251/2021

[2025] HKCFI 6308

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 251 of 2021

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge To:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.This is the Applicant’s application by Form 86 filed on 1 March 2021 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-refoulement Petitions Office (the “Board”) dated 29 December 2020 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 31 May 2018 (the “Notice”), refusing his application for non‑refoulement protection.

The Applicant’s claim

2.The Applicant is an Indian national. His personal background, the factual background leading to the present application, the basis of his claim, the arguments he advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision. The hyperlink to the Board’s Decision is included below[1] for reference. Briefly, the Applicant is a Panchayam member of the Communist Party of India (Muslim) (the “CPI(M)”). He was harassed and attacked during the 2010 election.  As a result of the harassment, he moved to work in Oman. In mid-2014, returned to India after his cousin was murdered by the Bharatiya Janata Party (the “BJP”). While he was in Bombay, his close friend was also murdered by BJP member. Both his cousin and close friend were CPM members and had worked with him for the CPM. He was shocked and upset. Thus, he went to Ajmer, Indore and then to Hong Kong to relax. While in Hong Kong, his mother told him that some BJP people had come to his home looking for him. Out of fear, he stayed in Hong Kong and sought non-refoulement protection. In gist, he claims he will be harmed or killed by the BJP, Hindutva[2] or the Quotation Gangs because of his political involvement or interest in politics.

The Board’s finding

3.The Board considered the critical issues in this case centre around the Applicant’s unremarkable profile and the chance that he might be of interest to somebody in India in the way he claimed. It had difficulties with the credibility of the Applicant’s claims which could not be resolved. It therefore listed the matter for an oral hearing to resolve its considerable doubts regarding aspects of the Applicant’s account of previous events and claims that he would be at risk of suffering proscribed harm should he return to India in the reasonably foreseeable future. However, the Applicant did not appear at the oral hearing.

4.Even accepting he was a member of the CPI(M), the Board’s concern in relation to fundamental aspects of his claims could not be resolved in his favour. In relation to the murder of his cousin and close friend, the Board considered the Applicant’s evidence vague. Even accepting that they were murdered, it had considerable doubts that their deaths suggest the Applicant might face any risk of harm due to his profile and low level of political participation. In particular, the evidence does not establish that he would be of any adverse interest to Hindutva, the BJP, the Quotation gangs or anybody else, should he return to India. It distinguished the Applicant’s case from the political murders. Even assuming he were to attract such adverse interest, the evidence before the Board could not establish that he would be unable to access adequate state protection or that it would be unreasonably or unduly harsh for him to relocate to another part of India to avoid any risk of harm.

5.In the ultimate analysis, even accepting the factual case as he asserted, the Board found the Applicant had neither established that he has been targeted in the past, nor that he would be of sufficient interest to be targeted in the future. As a result, the Board did not consider there to be any real chance or reasonable degree of likelihood that he will be persecuted or have a well-founded fear of being persecuted whether for any of the reasons enumerated in Article 1A of the 1951 Convention relating to the status of Refugees and its 1967 Protocol or other reasons, if returned to India. Likewise, it did not consider there was anything which would create a risk of severe pain being inflicted on him on his return to India. As a result, the Board did not consider there are substantial grounds for believing he would be in danger of being subjected to torture or cruel, inhuman, degrading treatment or punishment for the purpose of Torture Risk ground or BOR 3 Risk ground, if returned to India. In light of the foregoing, the Board found there is not a real risk that the Applicant will be arbitrarily deprived of life, have the death penalty impose on him or otherwise be deprived of his rights under BOR 2.

6.Hence, it dismissed his appeal against the decision of the Director in the Notice.

Grounds for judicial review

7.At the hearing, after the legal principles applicable to judicial review had been explained to him, the Applicant submitted that despite he had told the Director and the Board the truth, he was not believed. He argued that given what had happened to him at the election, including the murder of his cousin and close friend, there was no reason to refuse his claim for protection. Other than these challenges, he has no complaint about procedural unfairness or irrationality in the Decision. His challenges are against the Board’s finding of fact which is not permissible in an application for judicial review, save for errors of law, procedural unfairness or irrationality in the Decision.

8.The Applicant then said he would like to withdraw his application because his younger brother had died of a heart attack three years’ ago and his mother is suffering mental distress. He wanted to return to his home country to take care of his mother. As he had challenges against the Board’s Decision and that the underlying reason of his intention to withdraw the leave application is to return to his home country to look after his mother, the Court could not consider his decision to withdraw a voluntary one. Accordingly, the Court proceeded with determination of his leave application.

Overall scrutiny

9.Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the USM; the burden of proof and standard of proof and correctly identified the issues.

10.As the Board had called for an oral hearing but proceeded to make a determination upon the Applicant’s failure to attend the hearing, the Court is particularly concerned whether in so doing the Board had accorded the Applicant the high standard of fairness, which he was entitled to. The papers revealed that the Applicant had filed a notice of appeal with the Board on 14 June 2018 giving an address in Prat Avenue as his residential and correspondence address (the “residential address”). Then, upon deciding to call for an oral hearing, the Board sent a notice of oral hearing to the Applicant at his residential address on 25 September 2020. On 16 October 2020, the Board noticed that the Director had attempted to send the hearing bundle to the Applicant at an address in Minden Row, which he provided to the Director on 21 January 2020 (the “Updated Address”). On 20, 21, 22 and 27 October 2020 (i.e. the date of the oral hearing), the secretariat of the Board attempted to contact the Applicant on his mobile telephone, but the Applicant did not answer any of the calls. The Applicant did not appear at the hearing or explain his failure to appear.

11.The Board was satisfied that the notice of hearing had been sent by post addressed to the Applicant at his last known residential address provided by him in his notice of appeal pursuant to section 37ZA(2) of the Immigration Ordinance (the “Ordinance”) in accordance with the requirements of section 37ZV and sub-clause 15(1) of Schedule 1A to the Ordinance and paragraphs 8.7 and 11.7 of the Petition Guide.  Accordingly, it was satisfied pursuant to sub-clause 15(1) of Schedule 1A of the Ordinance and paragraph 11.12 of the Petition Guide that the notice of hearing had been duly served on the Applicant. It then wrote to the Applicant pursuant to sub-clauses 15(1) and 15(2) of Schedule 1A of the Ordinance and paragraphs 11.14 and 11.15 of the Petition Guide to give him written notice of its intention to determine the appeal in his absence and informed him that he could submit to the Board, within 7 days after the notice having been given to him, written explanation for his failure to attend the hearing together with any supporting documentary evidence. This notice was sent by post both to his last residential address and his updated address. The Applicant did not respond. Then the Board made its Decision.

12.The notice of hearing was sent to the Applicant’s correspondence address and not to his updated address. Despite that, as the Applicant had never informed the Board of his change of address, he has to bear the consequence of any delay or even non-delivery of communication occasioned by his failure to update the Board of his address. In Karamjit Singh[3], the Court of Appeal said:

“As we have said before, it is common sense that if a litigant or a claimant does not notify the authority (be it the Immigration Department, the board, or the court) in his change of address, there would be delay in communication. If he does not do so, he should arrange for timely transmission of mail from his old address to his new address. It is the duty of a litigant/claimant to give the authority an address to which correspondence or notice can come to his attention in timely manner. The consequence of any delay occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant/claimant, see: Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Said Umair v Torture Claims Appeal Board [2018] HKCA 82; and Re Saqlain Muhammad [2018] HKCA 346.”

Here, the Board had done more than what it was required to do. It sent the notice to the Applicant’s updated address and made various attempts to contact him by phone. It was the Applicant who chose not to answer the calls repeatedly. The Court is therefore satisfied that the Board had attained the high standard of fairness required of it.

13.The Board analysed the evidence carefully and tested it against common sense, inherent probability and the country of origin information. Despite its doubts about the credibility of the Applicant’s case, the Board had assessed his claim even on the basis of the factual case as he asserted. However, because of his very limited political involvement or interest in politics, even on that basis it was not satisfied that the Applicant would be of interest to the BJP, Hindutva, the Quotation gangs or anybody else should he return to India now or in the reasonably foreseeable future.

14.Applying the law applicable to non-refoulement protection under the USM to the above facts, the Board found that the Applicant had failed to establish the factual basis to support his claim for protection under any of the applicable grounds under the USM. These are mixed findings of fact and of the law. Insofar as they are finding of the law, they are absolutely correct. Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law or procedural unfairness or that the Decision is irrational. The Court could detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge his burden of proving his fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.

Conclusion

15.For the above reasons, the Applicant’s leave application is refused.

Dated the 19^th day of December 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