DADRA SUNNY v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1757/2020

[2025] HKCFI 4456

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1757 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 the Applicant being absent in open court;

1.  The Applicant’s Form 86 be amended to name the TCAB as the putative respondent, the DOI as a putative interested party and the TCAB Decision as the decision sought to be reviewed; 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 2 September 2020, the Applicant applied for leave to apply for judicial review of the decision of the Director of Immigration (the “DOI”) of “11-08-2020” and named the DOI as both the proposed respondent and interested party.

2.  The case record shows that the Applicant’s non-refoulement protection claim was first refused by the DOI by his decision of 18 September 2018, and the refusal was later upheld by the Torture Claims Appeal Board (the “TCAB”) by its decision of 11 August 2020 (the “TCAB Decision”).

3.  I take it that the Applicant is seeking judicial review of the TCAB Decision and I amended the Form 86 accordingly, naming the TCAB as the putative respondent and the DOI as a putative interested party.

4.  The Applicant requested for an oral hearing but he did not attend the scheduled hearing on 3 September 2025. I see from the court record that, on 27 August and 2 September 2025, attempts were made to contact the Applicant at the contact number he provided to the court himself but there was no response. Further, the notice of hearing was also sent to the same correspondence address as stated in the Form 86. I therefore see no reason why I should not proceed to deal with this application on paper despite his absence at the hearing.

Background

5.  The Applicant is a national of India. He seeks non-refoulement protection on the basis that he would be seriously harmed by members of an opposing political party if he was returned to India. 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

6.  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 10 HKCFAR 676).

7.  In his affirmation filed in support of this application, the Applicant alleged that the DOI (by what I take it to mean the TCAB) had failed to consider all the matters raised and/or give adequate reason for the decision, which was unreasonable as well.

8.  Looking at the TCAB Decision, the TCAB had considered all the materials and evidence before it [5-27] and carefully analysed the same [28-35] before coming to a set of findings that were then applied in the assessment of the four grounds under the USM [36-37].

9.  In assessing the USM grounds, the TCAB applied the correct principles to the facts and evidence and came to the conclusion that none was made out [38-68].

10.  I do not see how the Applicant’s complaints herein can be substantiated and I do not otherwise detect 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