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

HCAL 1869/2020

[2025] HKCFI 4639

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1869 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 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 18 September 2020 (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 31 August 2020 (the “TCAB Decision”), which affirmed a decision by the Director of Immigration (the “DOI”) dated 5 November 2018 in refusing the Applicant’s non-refoulement protection claim. He named the 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 he attended the same. When asked if he had anything to add he confirmed that he had not.

Background

4.  The Applicant is a national of India. He seeks non-refoulement protection on the basis that, if he was returned, he would be ill-treated or even killed by his girlfriend’s family for his religious belief and 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

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 his affirmation filed in support of this application, the Applicant raised a number of complaints. In gist, it is alleged that (a) he did receive the hearing bundle earlier or with interpretation and the hearing was unfair, (b) the TCAB relied on unofficial source of news and outdated cases and (c) the BOR2 claim was rejected directly by TCAB without screening by the Immigration Department.

7.  Looking at the TCAB Decision, the history of the Applicant’s non-refoulement protection claim was set out [3-5] and it is clear that the DOI did consider the Applicant’s claim based on all four applicable grounds under the USM. As indeed, looking at the DOI’s decision of 3 November 2018, it is clear that the Applicant attended a screening interview on 24 October 2018 ([6] thereof). There is no basis for complaint (c) above whatsoever.

8.  Also from the TCAB Decision, it can be seen that the Applicant was assisted by an interpreter at the hearing before the TCAB [10] and through whom he confirmed that his submitted documents, and that he had read and understood the DOI’s decision, the COI and the written submissions [11]. Complaint (a) is groundless.

9.  Reading the TCAB Decision in its entirety, the TCAB took into consideration all the materials placed before it, including the Applicant’s case and evidence [12-15], and applied the correct principles in assessment approach in its analysis of the same [16-42], before coming to the finding that the Applicant’s allegations were not made out [54-67].

10.  The TCAB then proceeded to analyse each of the four applicable grounds and came to the conclusion that none was made out, applying in each instance the correct principles [68-90].

11.  Further, the TCAB came to the conclusion that state protection was available to the Applicant on the basis of the same COI considered by the DOI [43-48], which were published in 2017 and 2018 (see [18] of the DOI’s decision). This dispels complaint (b). Also, the TCAB came to the conclusion that internal relocation was available as well [92-98].

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

Conclusion

13.  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