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

HCAL 1859/2020

[2025] HKCFI 4491

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1859 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 only the TCAB 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 17 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 11 March 2020 (the “TCAB Decision”), which affirmed a decision by the Director of Immigration (the “DOI”) dated 31 October 2017 in refusing the Applicant’s non-refoulement protection claim.  He named the TCAB and the Immigration Department as proposed respondents as well as interested parties.

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 TCAB Decision only concerned three of the four applicable grounds under the USM, as the Applicant’s claim based on torture risk had been made and rejected by the DOI in 2013, and the rejection was affirmed by the TCAB in 2014.

4.  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.

5.  This application is plainly out of time and there is no application made for extension of time.  Nonetheless, 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

6.  The Applicant is a national of India.  He seeks non-refoulement protection on the basis that, if he was returned, he would be harmed and killed by his creditor, a person who wanted to replace him at his job and also members of an opposing political party.  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

7.  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).

8.  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 and simply stated that “they disregard my dangerous situation” [sic.].

9.  Looking at the TCAB Decision, the TCAB took into consideration all the materials placed before it, including what the Applicant said at the hearing [31, 54-66].  The TCAB also bore in mind the proper approach in dealing with the appeal [28-30], the correct principles applicable to the grounds before it [31-40].

10.  After thorough analysis of the Applicant’s case and evidence [41-66], the TCAB came to find that the Applicant’s allegations were not made out [67-77].  The TCAB then proceeded to analyse each of the three grounds before it and concluded that none was made out [78-84].

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

Conclusion

12.  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