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

HCAL 849/2020

[2025] HKCFI 4646

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 849 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 (i) the Board as the putative respondent and (ii) the DI as putative interested party;and

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

Observations for the Applicant:

1.  By a Form 86 filed on 8 May 2020 (“Form 86”), the Applicant sought leave for judicial review of the decision of Mr Bruce Henry dated 14 April 2020.  Mr Henry was a member/adjudicator of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”) and decided the Applicant’s appeal/petition regarding his non‑refoulement claim on 14 April 2020 (“the Board’s Decision”).  A copy of the Board’s Decision can be viewed by the following hyperlink[1].

2.  The Director of Immigration (“DI”)’s first-tier decision in this case was made on 29 January 2018.  While it is not entirely wrong for the Applicant to name Mr Henry as a putative respondent, in the interest of consistency with other decisions of the Court, I amend the Form 86 on my own motion to name the Board as the putative respondent; additionally, the DI is named as the putative interested party.

3.  In the Applicant’s Form 86 and supporting affirmation, he has failed to identify any alleged errors of law, irrationality or procedural unfairness on the part of the Board.  He simply tried to state the reason why he left his country of origin India to seek refuge in Hong Kong again.  His non-refoulement claim was based on an alleged risk of being harmed or killed by a money lender who was said to be have political connection. After an oral hearing, the Board found the Applicant’s assertions incredible as he could not even recall details of the loan which he claimed was the basis of his problems in India.  It was said the Applicant had offered no coherent or credible explanation to the Board for the problems with his evidence about this key aspect of his claim.

4.  In the oral hearing before me, the Applicant confirmed that he had nothing else to add in addition to the papers filed in his application.  He just stated that his problem in India was not yet solved and he wished to have more time to resolve it.

5.  I have reviewed the Board’s Decision vigorously.  In my judgment, the Board’s Decision was based on sound factual findings and there was no apparent legal error in the decision.  These findings were within the Board’s discretion and supported by evidence.

6.  It has been reiterated time and again that the primary responsibility for the factual assessment of whether any future risk of ill-treatment exists if an applicant returns to his/her home country lies with the Board.  In the absence of any errors of law, procedural unfairness or irrationality, the Court would not reopen the Board’s findings or make a determination on the case afresh.  The role of the Court in a judicial review is not to provide a further avenue of appeal (see Re Lakhwinder Singh [2018] HKCA 246).

7.  The leave application to apply for judicial review is thus 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