MAHYAVANSHI RAJESHBHAI BALUBHAI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1910/2020

[2025] HKCFI 4656

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1910 of 2020

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

Following:

1.  The Applicant’s Form 86 be amended to name the TCAB only as the putative respondent and only the DOI as a putative interested party; 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 24 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 21 May 2020, which affirmed a decision by the Director of Immigration (the “DOI”) dated 3 September 2018 in refusing the Applicant’s non-refoulement protection claim. He named the TCAB as the proposed respondent as well as an interested party.

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

3.  The TCAB Decision only concerned three of the applicable grounds under the USM as the Applicant’s claim based on torture risk was made and refused by the DOI in 2012. The refusal was later upheld by the TCAB in 2012 as well.

4.  The Applicant requested for a hearing but he was absent at the scheduled hearing on 12 September 2025. It turned out that he went to a wrong court on that day and upon his request I adjourned the hearing to 19 September 2025.

5.  The Applicant attended the adjourned hearing and when asked if he had anything to add he confirmed that he had not.

6.  This application was made out of the three-month period provided under O.53, r.4(1), RHC. The time for taking out this application expired on 22 August 2020. The fact that the expiration date fell within the court’s summer vacation period does not extend the time limit: the court Registry remains open during summer vacation (O.63, r.7), and exclusion of the summer vacation in reckoning time is only provided in O.3, r.3 of the RHC and s.31(1) of the High Court Ordinance (Cap. 4), the former only applies to pleadings and the latter only applies to any time period not exceeding one month, hence neither applicable to the filing of a Form 86.

7.  Although there is no application for an extension of time to file the Form 86, I would still proceed to consider the merits of the application in determining whether extension of time should be granted to entertain this application.

Background

8.  The Applicant is a national of India. He seeks non-refoulement protection on the basis that if he was returned, he would be harmed or killed by person of rival political affiliation and associated with local gangs. 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

9.  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).

10.  In his affirmation filed in support of this application, the Applicant did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision.

11.  Looking at the TCAB Decision, the TCAB took into consideration the Applicant’s case and evidence, and all materials placed before it [8-22]. Applying the correct principles in respect of factual assessment [46-49] and after thoroughly analysing the materials, including the Applicant’s testimony at the hearing before it, the TCAB came to the finding that the Applicant’s allegations were not made out [50-63].

12.  The TCAB bore in mind the correct principles in respect of the three grounds before it [23-37, 41-45], including those in respect of assessing state protection and internal relocation [28-40], the TCAB proceeded to analyse each of the grounds and concluded that none was made out [64-71].

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

Conclusion

14.  For the above reasons, I am not satisfied that this court would have intervened by way of judicial review even if time were to be extended. 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