Mohamad Ambia v. Torture Claims Appeal Board
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HCAL 1953/2023 [2026] HKCFI 6004 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1953 OF 2023 BETWEEN
Application for leave to apply for judicial review NOTIFICATION of the Judge’s decision (Order 53, rule 3) Following:
Order by Deputy High Court Judge Michael WONG:
Observations for the applicant: The Leave Application 1.By way of Form 86 dated and filed on 31 October 2023, 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 25 October 2023 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:- 2.The Board found that the applicant had failed to establish his claim for non-refoulement protection on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board dismissed the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 18 June 2021 and confirmed the same, which rejected his non-refoulement claim. Amendments 3.The applicant named “Torture claim Appeal Board / Immigration Department of Hong Kong” as the putative respondent and “Torture Claims Appeal Board / Director of Immigration” as the putative interested party in Form 86, when the Board should only be named as the putative respondent, and the Director should be named as the putative interested party. 4.Thus, this court 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 if refouled to India, he would be harmed or killed by Rakesh Yadav due to his relationship with a young woman Avantika Yadav (“Avantika”). The applicant claimed that he was a Muslim by birth and Avantika was a Hindu. 7.The applicant claimed that Avantika’s family disapproved of the applicant’s inter-religion relationship with Avantika. In particular, Avantika’s brother Sanjay Yadav[1] (“Sanjay”) viewed their relationship dishonour and brought shame upon their family. The family regarded their being together a violation of the belief of their community and religion of an honour practice. To stop the applicant’s relationship with Avantika, Sanjay approached his friend Rakesh Yadav for help. 8.The applicant claimed that Rakesh Yadav was a follower of the Rashtriya Swayamsevak Sangh (“RSS”), which was a Hindu group promoting the Hindu discipline and uniting the Hindu community to form a Hindu nation. The applicant also claimed that Rakesh Yadav was acquainted with a Member of Legislative Assembly of the Bharatiya Janata Party. 9.As stated in paragraph 65 of the Board’s Decision, it was the evidence of the applicant that the Citizenship Amendment Act 2019 of India was discriminatory which would put all Muslims including him at a threat of statelessness. 10.It was also the applicant’s evidence that the Love Jihad Law would aggravate the danger on him if he was sent back to India (see paragraph 69 of the Board’s Decision). Oral hearing 11.The applicant requested for an oral hearing of the Leave Application and his case was heard on 22 October 2026. 12.The applicant attached a handwritten letter to his supporting affirmation dated 31 October 2023. The applicant confirmed at the hearing that he would rely on the contents of this letter as his grounds for judicial review. He added that RSS was still looking for him, the father of the girl he was in a relationship with was a RSS member, and the girl’s father broke and fractured his foot and he had a plate installed in his foot. 13.When this court asked the applicant what was wrong with the Board’s Decision, the applicant simply replied that he did not know. Grounds for judicial review 14.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). 15.The applicant did not advance any ground for his intended judicial review in Form 86. 16.In the letter annexed to his supporting affirmation, the applicant initially reiterated his own background similar to what the Board summarised in paragraphs 8 to 11 of the Board’s Decision. He then mentioned that: (1) he had already told all of his story during the process of his non-refoulement claim; and (2) he was born in a Muslim family in India and it was very dangerous to stay and survive there. 17.As aforesaid, the applicant did not elaborate on the contents of the said letter at the oral hearing before this court. He only added that RSS was still looking for him, the girl’s father was a member of RSS and the girl’s father broke and fractured his foot. Discussion 18.First of all, the applicant’s danger or risk arising from his relationship with a girl, as well as his problems being a Muslim in India had been duly assessed but rejected by the Board. If the applicant intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review unless there were errors of law, procedural unfairness or irrationality in the Board’s Decision. 19.Nevertheless, this court notes that the applicant made a new claim at the oral hearing before this court, namely that the girl’s father was a member of RSS. It is evident from the Board’s Decision that the applicant’s case was that only Rakesh Yadav, who was a friend of Sanjay, was a member of RSS. The applicant did not claim that Avantika’s father was also a member of RSS, or that Avantika’s father had broken his foot. 20.The Court of Appeal has held in Trinh Thuy Huyen v Torture Claims Appeal Board [2024] HKCA 1090 that the Board had no duty to make investigation into any matter without the applicant raising it and it should not be considered by this court at this stage. 21.Thus, what the applicant said at the oral hearing, namely that the girl’s father was a member of RSS and the girl’s father had broken his foot, were new claims, and they cannot be used as valid grounds to challenge the Board’s Decision. 22.This court therefore finds that none of the matters raised in the applicant’s letter that was annexed to his supporting affirmation or at the oral hearing before this court constitutes a valid ground to challenge the Board’s Decision. 23.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). 24.Thus, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any valid ground being advanced by the applicant for the intended judicial review. 25.In assessing the appeal by the applicant, the Board held an oral hearing on 31 January 2023 and the applicant was present. Thus, the applicant was given the opportunity to present his case to the Board in person. 26.The Board had laid out its consideration on all the aspects of the applicant’s claims in paragraphs 26 to 73 of the Board’s Decision, and it is not necessary to repeat the same here. 27.In gist, in respect of the applicant’s risk arising from his relationship with Avantika, the Board found that according to the applicant’s evidence, his relationship with her was really distant and ceased in June 2017, though Avantika told him that she wanted to marry him and her family members were not angry with her anymore. Avantika’s family disapproved their relationship and viewed that their relationship ceased after the applicant went to Malaysia in December 2013. 28.With regards to the claimed threat from Rakesh Yadav, the applicant claimed that Rakesh Yadav was only a friend of Sanjay. The Board found no basis for Rakesh Yadav to step into the matter. It was only the applicant’s mere speculation that Rakesh Yadav was invited by Sanjay to take action against him for his relationship with Avantika. Moreover, the applicant in fact did not date Avantika and had already ceased his relationship with Avantika in 2017. The Board found that there was absolutely no reason for Rakesh Yadav to take action on the applicant. 29.Consequently, the Board found that the applicant’s evidence of Rakesh Yadav and his people went to look for him with his photo in hand while the applicant was in Mumbai and Bhadrak was unconvincing and unacceptable. 30.In relation to the applicant’s claim about the vandalism in his father’s shop and the assault on his father by Rakesh Yadav and his people, the Board found that there was no information as to how the shop was vandalized and how the applicant’s father was assaulted. 31.As regards Rakesh Yadav and his people’s assault on the applicant himself which resulted in the applicant’s right leg being broken, the Board found that the applicant’s evidence of the assault was poor as it lacked information. Moreover, the Board noted that the applicant had no more encounter with Rakesh Yadav even when he stayed at home for 10 to 12 days after discharge from hospital. 32.After considering all the relevant evidence, the Board did not accept that the applicant was assaulted by Rakesh Yadav, or that Rakesh Yadav was still chasing after him as alleged. 33.In respect of the applicant’s claim that the Citizenship Amendment Act 2019 of India was discriminatory which would put all Muslims including him at a threat of statelessness, the Board found that the said Act only sought to give citizenship rights to illegal immigrants belonging to certain religious minorities who had entered into India before 2015 from Pakistan, Bangladesh and Afghanistan. The applicant was misconceived in saying that the Citizenship Amendment Act 2019 would lead him to be a stateless person. 34.With regards to the applicant’s claim that the Love Jihad Law would aggravate the danger on him if he was sent back to India, the Board found that the law was to prevent forceful conversion of religion through marriage and was enacted in Uttar Pradesh. There was no information that such an act was enacted in Bihar, the applicant’s living place. More importantly, the applicant had already ceased his relationship with Avantika. The law would have no impact on the applicant at all if he was sent back to India. 35.The Board had also given reasons in paragraphs 74 to 77 of the Board’s Decision for the finding that even if the applicant’s case was accepted, the applicant had not proved that there was a real likelihood for the risk from Rakesh Yadav to materialize. 36.Furthermore, the Board discussed the availability of state protection to the applicant in paragraphs 78 to 82 of the Board’s Decision. Based on the available country of origin information (“COI”), the Board found that state protection was ready and available upon the applicant’s return to India. 37.As to internal relocation, the Board had also given full and justified reasons in paragraphs 97 to 100 of the Board’s Decision for its finding that it was not unreasonable or too harsh for the applicant to relocate to other parts of India to avoid the perceived harm. 38.Thus, the Board concluded that the applicant had failed to establish his claim for non-refoulement protection on all the applicable grounds under the USM. 39.The finding of facts, including assessment of evidence, COI and risk of harm, was solely within the ambit of the Board in dealing with the applicant’s appeal/petition. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion. 40.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. 41.As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys 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 42.For reasons aforesaid, the Leave Application is dismissed. Dated the 28th day of October 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 [1] The Board spelt the name of Avantika’s brother as Sanjay Yadav throughout the Board’s Decision, save in paragraph 14(v) of the Board’s Decision, where it named him as “Sanjay Rakesh”. |
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