KHAN WAKAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 178/2023

[2026] HKCFI 3142

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 178 of 2023

Application for Leave to Apply for Judicial Review

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

Following;

1.   The Applicant’s Form 86 be amended to name the TCAB as the putative respondent; and

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

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 8 February 2023 (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 1 February 2023 (the “TCAB Decision”), which affirmed a decision by the Director of Immigration (the “DOI”) dated 28 June 2021 in refusing the Applicant’s non-refoulement protection claim.  He named the TCAB adjudicator as the proposed respondent and the DOI as an interested party.

2.  I amended the Form 86 on my own motion to name the TCAB as the putative respondent.

3.  The Applicant requested for a hearing and attended the same.

Background

4.  The Applicant is a national of India.  He seeks non-refoulement protection on the basis that he would be killed by people from whom he borrowed money and could not repay.  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 asserted that the TCAB adjudicator was in breach of procedural fairness, in having unlawfully fettered his discretion, acted in a procedurally unfair manner, making an unreasonable or irrational decision, and failed to meet the greater care and duty owed to a self-represented claimant.

7.  However, there was no particulars whatsoever supplied for any of the above complaints.  They remain bare assertions.

8.  In his affirmation filed in support of this application, the Applicant raised a number of matters in complaint.

9.  He firstly complained that he did not have sufficient time to prepare for the hearing before the TCAB and he was not assisted legally or in terms of language.  As to legal assistance, it has been held repeatedly by the Court of Appeal that free legal representation at all stages of the proceedings is not an absolute right.  The Applicant was represented by the Duty Lawyer Service when submitting her NCF and hence the high standard of fairness was attainted as it was the most important stage of her claim.

10.  As for language, this complaint is contrary what the TCAB had recorded in the TCAB Decision, namely that the Applicant adopted all information in the hearing bundle [21], i.e. without any protest in time and language, and that the Applicant had answered questions asked by the adjudicator [21-22], i.e. without any protest as to his understanding of the materials or the proceedings.  I note in particular that his affirmation came as a typed-up document entirely in English, and there was no interpretation clause therein to show that the Applicant required such assistance to understand the contents.

11.  He then complained that the TCAB had relied on Country of Origin Information (“COI”) which was not officially recognised and relied on outdated cases.  There are firstly no particulars given at all as to what COI or cases the Applicant was referring to.  More importantly, the cases cited by the TCAB were all correct and currently applicable, and the COI referred to were materials issued by bodies such as the US State Department and the UK Home Office.

12.  Lastly, he complained that there was no screening for his claim under the BOR 2 ground and the same went directly to appeal.  This is simply not true, as recorded in the TCAB Decision, the Applicant was interviewed by the Immigration Department on all four grounds under the USM in May 2021 and all were rejected in June 2021 [12-14].

13.  In gist, there is nothing in the above that establishes or supports any grounds for judicial review.

14.  At the hearing, the Applicant stated that he wanted to submit further documents but he did not inform me of a time period to do so.  More importantly, the documents were as described to show how many political murders had taken place in his home country.  I did not see any connection with the basis of his claim.

15.  He further submitted some medical documents to show that he was being followed up in the public hospital for various health issues.  However, these have nothing to do with the issues at hand in this application.

16.  Looking at the TCAB Decision, the TCAB took into consideration of the Applicant’s case and evidence, including his testimony at the hearing before it and relevant COI [16-24, 55-98].

17.  After thorough analysis and assessment, the TCAB came to the findings and conclusions that none of his allegations was made out [99-187, 199-207].

18.  The TCAB bore in mind the correct legal principles in respect of each of the four applicable grounds under the USM [25-49] and found and concluded that none was made out [208-230].

19.  The TCAB further found and concluded that internal relocation would in any event be available to the Applicant [188-198, 231-236].

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

Conclusion

21.  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