AHMED SIDDIQUE v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1885/2020

[2025] HKCFI 5250

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1885 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 oral submissions by the Applicant in open court;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 22 September 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review of a decision by the Torture Claims Appeal Board (the “TCAB”) dated 14 September 2020, which affirmed a decision by the Director of Immigration (the “DOI”) dated 24 September 2018 in refusing his non-refoulement protection claim.  He named the TCAB as the proposed respondent and the DOI as an interested party.

2.  The Applicant requested for a hearing and attended the same.  At the hearing he submitted a set of written submissions (dealt with below) and said that because his application for Legal Aid was still pending, he wanted to have more time. 

3.  From the court record, there was a memorandum dated 4 August 2025 issued by the Legal Aid Department informing the Court that the Applicant made an application for Legal Aid.  Thus, by 15 September 2025, the usual stay of 42 days under Reg. 7A of the Legal Aid Regulation (Cap. 91A) had expired.  I do not see any valid basis to order otherwise under s.15 of the Legal Aid Ordinance (Cap. 91), therefore I will proceed to deal with the present application.

Background

4.  The Applicant is a national of India.  He seeks non-refoulement protection on the basis that if he was returned, he would be harmed by a person of powerful political background who demanded a return of investment in a failed joint business venture.  His personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be assessed through a hyperlink[1], and I shall not repeat the same herein.

Discussion

5.  In a judicial review, this court does not provide a further avenue of appeal.  Though in non-refoulement case an enhanced standard in scrutinizing the decision of the TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI are the primary decision-makers.  This 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 (Nupur Mst v Director of Immigration [2018] HKCA 524, [14(1)]).  There must be a reasonably arguable claim with a realistic prospect of success before leave for judicial review will be granted (Peter Po Fun Chan v Winnie Cheung & Anor (2007) 10 HKCFAR 676).

6.  In the Form 86 the Applicant listed four grounds of complaint against the TCAB Decision: (a) the TCAB had unlawfully fettered its discretion, (b) procedural unfairness, (c) the decision was unreasonable or irrational in the public law sense, and (d) the TCAB failed the greater care and duty owed to a self-represented appellant.  However, in both the Form 86 and the supporting affirmation, the Applicant only particularised two specific complaints: (1) he was not given a fair opportunity to put forth his submissions in an oral hearing, nor was he invited to written submissions, and (2) the TCAB had relied on unofficial news and outdated information, thereby making groundless speculation as to safety in his home country.

7.  In the written submissions submitted at the hearing, the Applicant mentioned that he was applying for habeas corpus for release from Immigration detention, and that he had applied for Legal Aid. However, these matters have no bearing on the substantive issues at hand.

8.  Looking at the TCAB Decision, the TCAB took into consideration of the Applicant’s case and evidence, and all materials placed before it [5-16], including the Applicant’s testimony at the hearing before it [17-37].  There is therefore no basis for the Applicant’s complaint of not being given a fair opportunity to put further his submissions.

9.  After thoroughly analysing the same applying the correct assessment principles, the TCAB came to the finding that the Applicant’s allegations were not made out [38-47].  As such, there was no need for the TCAB to make any finding of general safety in his home country, as neither the question of state protection nor internal relocation arose given the adverse factual findings.

10.  The TCAB then proceeded to analyse each of the four applicable grounds under the USM, applying the correct principles in respect of each, and concluded that none was made out [49-83].

11.  I therefore do not see any error of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.

Conclusion

12.  For the above reasons, I am not satisfied that this court should intervene by way of judicial review.  I therefore dismiss the application.

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