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

HCAL 636/2023

[2026] HKCFI 3278

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 636 OF 2023

Application for Leave to Apply for Judicial Review

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

Following:

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

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 2 May 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 14 February 2023 (the “TCAB Decision”), which affirmed a decision by the Director of Immigration (the “DOI”) dated 30 November 2021 in refusing the Applicant’s non-refoulement protection claim.  He named the TCAB as the proposed respondent and the DOI as an interested party.

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

Background

3.  The Applicant is a national of India.  He seeks non-refoulement protection on the basis that if he was returned, he would be killed by people of opposing political affiliation. 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

4.  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).

5.  In his affirmation filed in support of this application, the Applicant raised 6 matters as grounds for judicial review.

6.  First, he complained that the TCAB adjudicator did not consider his claim and “directly dismissed” the same.  This is clearly not the case: the TCAB held a hearing for the Applicant’s appeal on 19 October 2022, and had clearly taken the time to consider his case and evidence placed before it, as evident from the TCAB Decision itself (see further below).

7.  Second, he complained that he had submitted documents that were in his native language, but the adjudicator did not accept them as he could not understand them.  This complaint is not bore out in the TCAB Decision: reading the account of the exchanges between the adjudicator and the Applicant, there was no a hint of the Applicant seeking to submit any document.  Further, this complaint is totally devoid of particulars, as the Applicant did not in his affidavit provide or even state what document he tried to provide but was rejected.

8.  Third, in connection with the second complaint above, the Applicant stated that he requested for more time to translate the documents but his “officer had no time”.  This complaint is equally not reflected in the TCAB Decision and not particularised.

9.  Fourth and fifth, he complained that the “translator” did not help him and became angry when he did not understand things, and the “interpreter” asked him to not take a long time for interviews.  Similarly, there are no particulars as to what he was unable to understand or prevented to raise, or whether it was during the hearing before the TCAB or interviews with the Immigration Department.

10.  Sixth, he repeated his plea to “safe [his] life”.

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

12.  Looking at the TCAB Decision, the TCAB took into consideration the Applicant’s case and evidence, including his testimony at the hearing before it and relevant COI [8-41]. After thorough analysis and assessment, the TCAB came to find and conclude that none of the allegations was made out [42-60].

13.  The TCAB then, with in mind the correct legal principles in respect of each of the four applicable grounds under the USM, found and concluded that none was made out either [61-79].

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

Conclusion

15.  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