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

HCAL 861/2021

[2026] HKCFI 304

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 861 of 2021

  Application for Leave to Apply for Judicial Review

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

Following;

1.  Form 86 be amended, naming only the Torture Claims Appeal Board/Non refoulement Claims Petition Office as the Putative Respondent and the Director of Immigration as the Putative Interested Party.

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

Observations for the Applicant:

Introduction

1.  By a Form 86 dated 11 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 3 June 2021 (the “TCAB Decision”), which affirmed the decisions of the Director of Immigration (the “DOI”) dated 24 April 2020.

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

3.  The Applicant requested for a hearing of this application and she attended the same.  When asked whether he had anything to add, he made submissions to the effect that while his stepfather was having treatment in the city of his home country,  2 Christian males approached his stepfather and asked about the Applicant’s whereabouts.  The stepfather told those 2 males that the Applicant was in China. Before he passed away, the stepfather told the younger sister who told him about this incident.

Background

4.  The Applicant is a citizen of Bhutan.  In gist, he feared that he, being a Buddhist lama, would be harmed or killed by the Christians in his village.  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

5.  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.

6.  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. 

7.  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.

8.  The Applicant did not state any grounds on which the relief is sought, other than stating in his supporting affirmation that, “…This [TCAB Decision] is unfair and unreasonable…”, and hence did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision in the Form 86.   

9.  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 applicable grounds under the Unified Screening Mechanism, the Applicant’s allegations were insufficient to make out any of the applicable grounds [74-83].  I agree wholeheartedly with the TCAB’s conclusion that “There is simply no basis whatsoever for [the Applicant’s] claim” [72].  Having regard to all the circumstantial evidence including the country of origin information (the “COI”), the Applicant’s case that he, being a Buddhist lama, feared harm by Christians, who were minority and at the very least generally discriminated in his home country, was almost absurd [54-73].  It is to be noted that the Applicant also commented at the hearing below that Christians indeed led an underground existence and, if it became known that they were Christians, could have trouble getting jobs, in line with the COI [57].

10.  I have carefully considered the Applicant’s oral submissions.  They do not assist his application.  If there are changes in the circumstances or new information that are material to his case for non-refoulement, an applicant may consider providing the information or new evidence to the Director of Immigration, who is the primary decision maker, pursuant to section 37ZO(2) of the Immigration Ordinance, Cap 115.  Such matters are not relevant to the present application (Amandeep Kumar v Torture Claims Appeal Board [2019] HKCA 1369 at §13; Poinem v Torture Claims Appeal Board [2020] HKCA 911 at §15).  However, in view of my analysis above, it is improbable that the Director would come to a different view.

11.  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