ABDUL HANNAN v. TORTURE CLAIMS APPEAL BOARD [Decision on Leave Application]

bjbj HCAL 1210/2020 [2025] HKCFI 5188 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1210 OF 2020 BETWEEN Abdul Hannan Applicant Torture Claims Appeal Board Putative Respondent Director of Immigration Putative Interested Party Application for leave to apply for judicial review NOTIFICATION of the Judge s decision (Order 53, rule 3) Following: consideration of the documents only; the name of the putative interested party be amended to Director of Immigration . The applicant s application for leave to apply for judicial review be dismissed. Observations for the applicant: The Leave Application By way of Form 86 dated and filed on 17 June 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 6 September 2019 ( the Board s Decision ). The Board s Decision can be viewed in the following hyperlink:- HYPERLINK "https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001210_2020_files/the_Board's_Decision.pdf" https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001210_2020_files/the_Board's_Decision.pdf The Board found that the applicant s claim for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism ( the USM ). Hence, the Board dismissed the applicant s appeal/petition and affirmed the decision of the Director of Immigration ( the Director ) dated 1 February 2018, which rejected the applicant s non-refoulement claim. Amendments In Form 86, the applicant named WONG Chi-wai MEMBER OF THE TORTURE CLAIMS APPEAL BOARD as the putative respondent and Torture Claims Appeal Board as the putative interested party. In fact, Mr Wong was determining the applicant s appeal/petition in his capacity as a member of the Board, and the Board should be named as the putative respondent. Moreover, only the Director should be named as the putative interested party. 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 . Late application By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant had to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board s Decision was made. However, the applicant filed Form 86 on 17 June 2020, which was more than 9 months after the Board s Decision (made on 9 September 2019). The applicant was hence late for more than 6 months in making the Leave Application. This court has to consider whether the time for the applicant to make the Leave Application should be extended taking into account of the criteria laid down in AW v Director of Immigration [2016] 2 HKC 393, which are: (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration. The applicant did not make any application for extension of time and provided no explanation for the delay in making the Leave Application. At the oral hearing before this court on 29 August 2025, the applicant merely explained that he did not know he could apply for judicial review at that point of time. He only came to know about this through his friends later. A delay of more than 6 months is substantial, and there is no justification for the delay when no good reason is given. Ignorance of the court s procedure cannot be a valid reason for the substantial delay. Moreover, there is also no merits of the intended judicial review as discussed below. Having considered the above criteria, this court is not prepared to grant any extension of time to the applicant to file the Leave Application, even if an application for extension of time was made. The Leave Application can therefore be dismissed on the ground of being made out of time alone. However, for the sake of completeness, this court will still examine the merits of the Leave Application. The applicant s case 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. In sum, the applicant claimed for non-refoulement protection because he feared that if refouled to India, he would face serious harm as he owed a moneylender named Vinod Kumar Shukla ( Vinod ) a debt which he could not repay. The applicant believed that Vinod worked under a Member of Legislative Assembly of a political party named Trinamul Mul Congress ( ). Oral hearing The applicant requested for an oral hearing of the Leave Application, and his case was heard on 29 August 2025. When this court asked the applicant for the grounds for his intended judicial review, he merely said that whatever he wished to say were already in the documents submitted. However, the applicant only attached with his supporting affirmation a copy of the Board s Decision. Grounds for judicial review 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). The applicant did not advance any ground for his intended judicial review in Form 86, nor in his supporting affirmation dated 17 June 2020. As aforesaid, the applicant did not advance any grounds at the oral hearing before this court either. Discussion 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, supra). Thus, despite that the applicant did not advance any ground for the intended judicial review, this court will still scrutinize the Board s Decision for any errors of law, procedural unfairness or irrationality. In assessing the appeal by the applicant, the Board held an oral hearing on 25 July 2019. The applicant was present and was given the chance to present his case to the Board in person. It is clear that the Board had carefully considered all the matters claimed by the applicant that gave rise to his non-refoulement claim, including that he obtained the loan from Vinod to operate a business, the alleged assaults by Vinod, and Vinod s extensive power and network in India. The Board also considered the documents submitted by the applicant. The Board considered that the applicant s failure to seek protection during his first visit to Hong Kong from 17 to 19 December 2014 or as soon as he arrived in Hong Kong again on 30 December 2014 was detrimental to his credibility. The Board found the applicant s account not credible, and his account was rejected as untruthful. Based on the lack of evidence and the inconsistencies in the accounts given by the applicant at different times, the Board did not accept the core elements of his claims, namely that he had operated a business, he was indebted to Vinod, Vinod had assaulted him numerous times, and Vinod had extensive power and network in his home country. There was also no evidence that the alleged acts of torture had inflicted on the applicant pain or suffering of certain severity or gravity. The Board did not accept that there was a real risk that the applicant would be ill-treated or at risk of arbitrary deprivation of life if he were refouled to his home country. It was also the applicant s own evidence that Vinod assaulted him solely for collecting the debt from him, which was a private financial dispute between them. There was no evidence to substantiate that Vinod himself was a public official. Even if the applicant was or might be ill-treated, any ill-treatment would not be due to a Convention reason. The applicant failed to establish that he had a well-founded fear of persecution. Moreover, after considering the country of origin information ( ) and all circumstances, the Board found that a reasonably effective criminal legal system existed in India, and any police or government officials who committed offences would be arrested, prosecuted and punished. There was no evidence that the whole government and the police force of India would fail to discharge their duties properly should the applicant bring the matters to the attention of the higher authorities. Thus, the Board found that reasonably sufficient state protection was available to the applicant. Based on its findings as summarized above, the Board noted the well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that he qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997). However, the Board explicitly stated that if it were necessary to consider the issue of internal relocation, there was no indication from the applicant s evidence that he was targeted by all members of TMC or the local government. The influence and power of Vinod was localized in the applicant s home area. The level of risk of harm, if any, would be further reduced or even negated if the applicant relocated to other states where TMC was less influential. The Board thus concluded that it was reasonable and not unduly harsh for the applicant, being an able-bodied Indian national with several years of education and several years of work experience, to reside and work anywhere within his home country, especially Mumbai and New Delhi. The Board had therefore fully assessed the danger of the applicant and found his claim for non-refoulement protection failed on all the applicable grounds under the USM. The assessment of evidence, COI materials and risk of harm was primarily within the realm of the Board. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its decision. 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. As held by the Court of Final Appeal in HYPERLINK "https://legalref.judiciary.hk/lrs/common/ju/ju_frame.jsp?DIS=59323&currpage=T" 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 For reasons aforesaid, the Leave Application is dismissed for being made out of time and also for devoid of merits. Dated the 31st day of October 2025 ( Irene LEE ) for Registrar, High Court 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 Notes for the applicant: If leave has been granted, the applicant or his solicitors must: a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). Sent/Handed to the applicant/the applicant s solicitors on: 31 October 2025 Applicant s ref. no: Nil Sent/Handed to the putative respondent / the putative respondent s solicitors / such putative interested parties as may be directed by the Court / the putative interested parties solicitors on: 31 October 2025 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative respondent s ref. no.: USM 10363/18/2/247/IN/1970 Director of Immigration Putative interested party s ref. no.: QA T/C 3763/17 (formerly RBCZ 11233/15) Department of Justice, Senior Assistant Law Office gd#+ gd#+ gd#+ gd#+ gd#+ gd#+ gd#+ gd#+ yt#+ gd#+ gd#+ gd#+ yt#+ gd#+ gd#+ yt#+ gd#+ gd#+ yt#+ gd#+ gd#+ yt#+ gd#+ gd#+ yt#+ gd#+ gd#+ yt#+ gd#+ gd#+ gd#+ yt#+ gd#+ gd#+ yt#+ gd#+ gd#+ gd#+ yt#+ gd#+ gd#+ yt#+ ~sjsjsjs_Vsjsjsj gd#+ gd#+ yt#+ gd#+ gd#+ gd#+ gd#+ gd#+ gd#+ ]TMTM h3<0 gd#+ gd#+ gd#+ gd#+ gd#+ hO>s hO>s hv}~ hO>s hO>s gd#+ gd#+ veXvSv hO>s hO>s hO>s ZTMTZ hO>s gd#+ yt#+ gd#+ gd#+ gd#+ yt#+ gd#+ gd#+ gd#+ gd#+ gd#+ gd#+ zj]jL G?;? gd#+ yt#+ gd#+ r (Civil Law) (Civil Litigation Unit 2) Form CALL-1 PAGE \* MERGEFORMAT gd#+ gd#+ gd#+ yt#+ yt#+ yt#+ yt#+ yt#+ yt#+ yt#+ yt#+ yt#+ yt#+ {#:V yt#+ yt#+ yt#+ yt#+ yt#+ [Content_Types].xml _rels/.rels theme/theme/themeManager.xml K Y, sQ}# theme/theme/theme1.xml $O}) Xp90 +PHI| PP yu 9xu5 fs+W VF7H q=. 8}d- qyI@ j!Q_ jyV` |PZ+ T ""p < 4V O&x$ A8>v ;EUC n 8r *~P(5 .}x E /,EE\} theme/theme/_rels/themeManager.xml.rels 5 6?$Q K(M&$R(.1 [Content_Types].xmlPK _rels/.relsPK theme/theme/themeManager.xmlPK theme/theme/theme1.xmlPK theme/theme/_rels/themeManager.xml.relsPK <?xml version="1.0" encoding="UTF-8" standalone="yes"?> <a:clrMap xmlns:a="http://schemas.openxmlformats.org/drawingml/2006/main" bg1="lt1" tx1="dk1" bg2="lt2" tx2="dk2" accent1="accent1" accent2="accent2" accent3="accent3" accent4="accent4" accent5="accent5" accent6="accent6" hlink="hlink" folHlink="folHlink"/> # iX# iX # iX Windows User Normal.dotm Windows User Microsoft Office Word Title _PID_HLINKS Microsoft Word 97-2003 Document MSWordDoc Word.Document.8