Sk Moinuddin v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2367/2020

[2026] HKCFI 1959

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2367 of 2020

Application for Leave to Apply for Judicial Review

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

Following:

Order by Deputy High Court Judge (Non-refoulement Claims) YW Hew:

1.   The Form 86 is amended on the Court’s own motion by naming only the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office as the Putative Respondent, by naming only the Director of Immigration as the Putative Interested Party, and by substituting “dated 9 November 2020” in place of “11 July 2018”; and

2.   The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.The Applicant is a national of India.  By a Form 86 filed on 2 December 2020 (“Form 86”), which was accompanied by a supporting Affirmation also filed on 2 December 2020 (“the Affirmation”), the Applicant sought leave to apply for judicial review of a decision (which was exhibited to the Affirmation) of the Torture Claims Appeal Board (“TCAB”) / Non‑Refoulement Claims Petition Office (“NRCPO”) dated 9 November 2020 (“the TCAB Decision”)[1].  

2.The Applicant did not seek an oral hearing of his application, hence I have dealt with such on the papers.  I have amended the Form 86 on my own motion to reflect the identity of the proper Putative Respondent and Putative Interested Party, as well as the correct date of the TCAB Decision.  I will use the abbreviations and definitions from the TCAB Decision unless otherwise specified herein.

Background

3.This is set out in the TCAB Decision.  While I will not repeat the contents thereof, in summary and in relation to the assessment of his claim:

(1)   The Applicant claimed non-refoulement relief on the basis that if he were sent back to India he would be harmed or killed by his creditor, Dr Jamal Khan;

(2)   The claim was assessed on the grounds of Torture Risk[2], BOR 2 Risk[3], BOR 3 Risk[4], and Persecution Risk[5] and was rejected by the Director of Immigration (“Director”) in a decision dated 29 June 2018 (“Director’s Decision”); and

(3)   The Applicant appealed/petitioned to the TCAB/NRCPO, which held a hearing on 28 October 2020, at which the Applicant gave evidence with the assistance of an interpreter.  The decision-maker later issued the TCAB Decision dated 9 November 2020, in which she found that the Applicant had not made out his claims for non-refoulement protection on any of the applicable grounds, and confirmed the Director’s Decision.

Legal Principles

4.An applicant, even one acting in person, is required to identify the grounds of judicial review clearly and succinctly in the Form 86, and to fully and frankly disclose all material facts and potential legal answers (Ho Loy & Another v Director of Environmental Protection, unrep. HCAL 21/2015, 22 December 2016, Chow J. (as he was then) at §142; Leung Kwok Hung, unrep., HCAL 83/2012, 28 September 2012, Lam J. (as he was then) at §35; Begum Khadija [2018] HKCA 571; Khan Kamran [2020] HKCA 380).

5.It is trite that the role of the Court in a judicial review is not to provide a further avenue of appeal, and that the Court should not usurp the role of the TCAB/NRCPO which is (and together with the Director are) the primary decision‑makers.  The assessment of evidence, COI materials, and credibility, risk of harm, state protection and viability of internal relocation are primarily within the province of the TCAB/NRCPO and the Director, which are entitled to make evaluations based on the evidence available and to decide the weight to be given to them.  While the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, the court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the TCAB/NRCPO.  (Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; Nupur Mst v Director of Immigration [2018] HKCA 524; Re Kartini [2019] HKCA 1022; Re Rupinder Singh [2021] HKCA 886).

6.In order for me to give leave for judicial review, I have to be satisfied that there is an intended ground of review which is reasonably arguable, which is one that enjoys a realistic prospect of success (Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676).  As a leave application of this sort is meant to be a filtering process, I am not expected to give elaborate reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23).

Discussion

7.There are no grounds of judicial review specified in the Form 86.  The Applicant claims therein that he is “not satisfied” with the TCAB Decision, and says in the Affirmation that the TCAB Decision is not “full fill”, that his life is in danger in his state Kolkata due to corruption in India, and that his “opponent party” will kill him if he returns.  However, such complaints do not amount to properly particularised allegations of any procedural unfairness in relation to, of any error of law in, and/or of any irrationality/failure to meet the enhanced Wednesbury test in, the TCAB Decision.

8.Nevertheless, given the seriousness of the issues at hand, I have considered the TCAB Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard and bearing in mind the need for a high standard of fairness.

9.The TCAB/NRCPO outlined the Applicant’s procedural and immigration history, documents which it had had regard to, then set out (with reference to relevant principles) the four relevant bases of risk, the concept of internal relocation, and how it was to assess risk (Paragraphs 1 to 32).  It then summarised and considered the facts of the Applicant’s case as advanced before it and the issue of state protection (Paragraphs 33 to 90), before assessing and dismissing Torture Risk, BOR 2 Risk, BOR 3 Risk, Persecution Risk, finding in the process that internal relocation was available and reasonable (as to which, on a holistic reading, the decision-maker agreed with the conclusion in the Director’s Decision that such was feasible, in particular to Chennai and Delhi).  There was hence no real risk of harm if the Applicant were refouled, the claims for non-refoulement relief were not made out, and the Director’s Decision was confirmed (Paragraphs 91 to 119).

10.I do not, from my examination and scrutiny, see that the Applicant has any reasonably arguable case that there was procedural unfairness (bearing in mind the need for a high standard of fairness), an error of law, and/or irrationality/failure to meet the enhanced Wednesbury test that is sufficient to vitiate the TCAB Decision and justify the grant of leave.  This is especially so given the assessment, reasoning, and findings regarding the evidence (including its rejection at Paragraph 70 of the Applicant’s claim that he had reported assaults by Dr Jamal Khan to the police), risk of harm, and internal relocation, which are within the province of the decision-maker.  I therefore see no public law basis for vitiating the consequent conclusions as to Torture Risk, BOR 3 Risk, BOR 2 Risk, and Persecution Risk, wherein regard was had to the evidence, and to salient concepts such as the nature and extent of the ill-treatment, acquiescence, the lack of any Refugee Convention reason, and the availability of state protection and (in any event) internal relocation.

11.The bare allegations made in the Form 86 and the Affirmation do not assist and are not relevant to the leave application, given the findings in and my aforesaid analysis of the TCAB Decision, and the nature of judicial review proceedings which are not meant to provide a further avenue of appeal.

12.I am not therefore not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success, or that there is any basis for the court to intervene by judicial review.

Conclusion

13.In the circumstances I have ordered that the application for leave to apply for judicial review be dismissed.

Dated the 16^th day of April 2026

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