TAMANG JANAK KUMARI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

Application for Leave to Apply for Judicial Review

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

Following;

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

Observations for the Applicant:

Introduction

1.  By a Form 86 dated 7 June 2021 (the “Form 86”), the Applicant applied for leave to apply for judicial review against the decision by the Torture Claims Appeal Board (the “TCAB”) dated 18 May 2021 (the “TCAB Decision”), which affirmed the decision of the Director of Immigration (the “DOI”) dated 1 March 2021.

2.  The Applicant requested for a hearing of this application.  When asked, she said she had nothing to add.     

Background

3.  The Applicant was a national of India.  In gist, she fears that should she be refouled to her home country, she will be killed by a loan shark due to her failure to discharge her repayment of the debt to him.  The Applicant’s personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be viewed through a hyperlink[1].  I shall therefore not repeat them.  Unless otherwise specified, TCAB’s abbreviations and descriptions are adopted herein.

Discussion

4.  The leave application operates as a filtering process and there is no requirement or expectation to give elaborate reasons for my decision: Re Zunariyah [2018] HKCA 14 at [23].  It is sufficient to state my observations after considering the TCAB Decision and the materials adduced by the Applicant.

5.  I remind myself that in a judicial review, this court does not provide a further avenue of appeal.  While I also remind myself that in non-refoulement cases, I would adopt an enhanced standard in scrutinizing the decision of the TCAB given the seriousness of the issue at hand, this court would not usurp the role of the TCAB, which together with the DOI are the primary decision-makers. A finding of fact is exclusively within the realm of the TCAB, and 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 at [14(1)].  There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. 

6.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (unreported, HCAL 21/2015, 22 December 2016) at [142], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

7.  In the Form 86, under the heading “Grounds on which Relief is sought”, she stated, “…I believe that the [DOI] and the [TCAB] reached the decision wrongly in assessing my Non-refoulement Claims.  The decisions were not reasonable and fair (as required by the Wednesbury test).  Indeed, the right to life is protected under Article 28 of the Basic Law and Article 2 of the Bill of Rights. In practice, the right to life is mainly protected by the criminal law and it must be protected from extra‑judicial killings that I may face if I am deported back to my country”.  

8.  As can be seen from the TCAB Decision, the TCAB took into account all the evidence available and found that on the basis of the same, applying the correct legal principles in respect of all the applicable grounds under the Unified Screening Mechanism, the Applicant’s allegations were insufficient to make out any of the applicable grounds [37-57].  The Applicant’s case was plainly hopeless.  The TCAB found that the Applicant was not an honest witness [31].  The TCAB’s conclusion was inevitable, given that the Applicant’s evidence was wholly illogical: the fearful loan shark was apparently quite willing to give the Applicant a lot of leeway in not paying immediately [19-27]. She also failed to satisfactorily explain why she suddenly stopped payment [28-30].  Further, given the country of origin information and her evidence, relocation was plainly a viable option [37-40, 46].

9.  It is plain that the purported grounds stated in the Form 86 are vague and generic grounds which do not point to any error of law, procedural unfairness or irrationality of the TCAB Decision.  They are mere assertions of broad principles which are not relevant at all in view of the TCAB’s ruling set out above. Such grounds do not (sufficiently) challenge the TCAB’s findings on the Applicant’s credibility or the issue of relocation.  

10.  All in all, I do not see any errors of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.  The Applicant’s intended challenge to the TCAB Decision is not reasonably arguable, and accordingly the application for leave to apply for judicial review is dismissed. 

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