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

HCAL 3829/2019

[2025] HKCFI 1542

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3829 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

1.  The Form 86 is amended on the Court’s own motion; and

2.  Leave to apply for Judicial Review be dismissed.

Observation for the Applicant:

Introduction

1.  By a Form 86 filed on 23 December 2019 (the “Form 86”), the Applicant applied for leave to apply for judicial review of “13 December 2019 Appeal for me Director of Immigration”. He did not name any proposed respondent nor any interested party.

2.  From the papers filed for this application, there was a decision by the Torture Claims Appeal Board (the “TCAB”) dated 7 April 2017 (the “2017 TCAB Decision”), which affirmed a decision by the Director of Immigration (the “DOI”) dated 16 January 2015 concerning three of the four applicable grounds under the USM. There was also a decision by the TCAB dated 13 December 2019 (the “2019 TCAB Decision”), which affirmed a further decision by the DOI dated 16 May 2017 concerning the remaining applicable ground. I take it that the Applicant is seeking judicial review of the 2019 TCAB Decision as time for doing so for the 2017 TCAB Decision had long expired.

3.  I therefore amended the Form 86 on my own motion accordingly and named the TCAB as the putative respondent, and the DOI as a putative interested party.

4.  The Applicant requested for a hearing of this application but was absent at the hearing. I therefore proceeded to deal with this application on paper.

Background

5.  The Applicant is a national of Inida. He seeks non-refoulement protection on the basis that he will be harmed or even killed by a debtor in India if he is returned. His personal background, the relevant facts and relevant procedural history have been sufficiently set out in the 2017 TCAB Decision, which can be assessed through a hyperlink[1], and I shall not repeat the same herein. The 2019 TCAB Decision can also be assessed through a hyperlink[2].

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 & Anr (2007) 10 HKCFAR 676).

7.  In his affirmation filed in support of the Form 86, the Applicant only repeated his factual basis for claiming protection and did not point to any error of law, procedural unfairness or irrationality of the 2019 TCAB decisions (or the 2017 TCAB Decision for that matter).

8.  Turning to the 2019 TCAB Decision, the decision that the TCAB made was a preliminary issue – whether the Applicant should be allowed to file the relevant Notice of Appeal/Petition (the “Notice”) against the DOI’s further decision dated 16 May 2017. The TCAB decided to refuse the Applicant’s late filing of the Notice.

9.  In coming to the above refusal, the TCAB had properly looked at the circumstances, including the lack of an explanation for the delay (albeit short) [19, 22]; bore in mind the applicable legal framework [16-18] and principles [20-22]; the Applicant’s case as set out in the 2017 TCAB Decision; and the overall justice and fairness considerations [25].

10.  All things considered, I do not see any error of law, procedural unfairness or irrationality in the 2019 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