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

HCAL 1797/2020

[2025] HKCFI 4563

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1797 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 should be amended to name only the TCAB as the putative respondent and only the DOI as a putative interested; 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 9 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 14 July 2020 (the “TCAB Decision”), which affirmed a decision by the Director of Immigration (the “DOI”) dated 5 September 2019 in refusing the Applicant’ non-refoulement protection claim.  He named the TCAB and the DOI as proposed respondents and the TCAB as an interested party.

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

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 Indonesia.  He seeks non-refoulement protection on the basis that he would be harmed if he was returned by a loan shark that he borrowed money from.  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, apart from reiterating that he was scared to return, the Applicant did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision.

7.  Looking at the TCAB Decision, the TCAB considered the Applicant’s case and all materials placed before it [7-25], including the Applicant’s testimony at the hearing before it [26-39] and relevant COI [42].  After thoroughly analysing the same, the TCAB came to the finding that the Applicant’s allegations were not made out [40-54].

8.  The TCAB then proceeded to analyse each of the four applicable grounds under the USM, bearing in mind the correct principles in respect of each, and concluded that none was made out [55-70].

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

Conclusion

10.  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