SANSAR CHAND v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1765/2020

[2025] HKCFI 4633

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1765 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;

1.  The Applicant’s Form 86 be amended to name only the TCAB as the putative respondent and only the DOI as a putative interested party; and

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

Introduction

1.  By a Form 86 filed on 3 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 25 August 2020 (the “TCAB Decision”), which affirmed a decision dated 5 September 2018 by the Director of Immigration (the “DOI”) refusing the Applicant’s non-refoulement protection claim. He named both the TCAB and the DOI as proposed respondents, and named the TCAB also as an interested party.

2.  I amended the Form 86 on my own motion to named only the TCAB as the putative respondent and only the DOI as a putative interested party.

3.  The Applicant requested for a hearing and he attended the same. When asked if he had anything else to add he confirmed that he had not.

Background

4.  The Applicant is a national of India. He seeks non-refoulement protection on the basis that he would be ill-treated or killed by people of powerful political background if he was returned. 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 his affirmation filed in support of this application, the Applicant did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision. He simply stated that he did not agree with the TCAB Decision and reiterated that his life would be in danger in his homeland.

7.  Looking at the TCAB Decision, the TCAB considered all the Applicant’s case and evidence placed before it [7-22], including the Applicant’s testimony at the hearings before the TCAB [56-58].

8.  The TCAB also borne in mind the correct principles [23-54] and thoroughly analysed all the materials before it [59-73], before coming to the finding that the Applicant’s allegations were not made out [74].

9.  The TCAB then proceeded to analyse each of the four applicable grounds under the USM and concluded that none was made out [75-86]. The TCAB further concluded that state protection and internal relocation were both available to the Applicant [87-95].

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

Conclusion

11.  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