ALI BADSHA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3815/2019

[2025] HKCFI 1699

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3815 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 oral submissions by the Applicant in open court;

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 a decision by the Torture Claims Appeal Board (the “TCAB”) dated 20 November 2019 (the “TCAB Decision”), which affirmed the decision by the Director of Immigration (the “DOI”) refusing the Applicant’s non-refoulement claim. The TCAB was named as the proposed respondent and the DOI was named as an interested party.

2.  The Applicant requested for a hearing of this application and he attended the same.

Background

3.  The Applicant is a national of India. He seeks non-refoulement protection on the basis that he will be harmed or killed by people of opposing political affiliation if he is returned. 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

4.  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).

5.  In his affirmation filed in support of the Form 86, the Applicant raised the following complaints against the TCAB Decision :-

5.1  He was not given an opportunity to put forward his submissions in an oral hearing or invited to submit written submissions;

5.2  The TCAB relied on news which was not from officially recognised sources, or simply hearsay, and the TCAB’s conclusion that he could safely return to India was therefore groundless speculation;

5.3  The TCAB relied on cases that were fairly outdated.

6.  As to the first complaint, it is factually wrong: the TCAB in fact held an oral hearing for the Applicant’s appeal [8], the Applicant did attend and with the assistance of a suitable interpreter [27] there were exchanges on matters that the TCAB specifically raised with the Applicant [29-34].

7.  For completeness, although the TCAB refused the Applicant’s request for more time to submit further documents from India, it was made clear to the Applicant that if he was to submit further documents prior to the TCAB Decision being made then such documents would still be considered [10]. However, the Applicant did not submit anything during the 2 months between the date of the TCAB hearing (16 September 2019) and the date of the TCAB Decision (20 November 2019).

8.  As to the second complaint, although COI was referred to by the TCAB [25], the conclusion reached by the TCAB was not based on the strength of the COI but rather on the weakness/incredibility of the Applicant’s case and evidence [29-36]. The analysis of the Applicant’s case and evidence was comprehensive and the Applicant was given full opportunity to explain.

9.  As to the third complaint, the TCAB set out in full the applicable principles to all four applicable grounds under the USM [13-24], the assessment approach [28] and correctly applied them in coming to the relevant conclusions [39-47]. There is nothing in terms of law cited that was “outdated” as far as I can see.

10.  At the hearing, the Applicant firstly referred to certain medical documents and wanted to submit as further evidence, however upon enquiry by me he confirmed that these documents were not related to his claim or present application. I therefore did not ask for him to produce such documents, nor did I consider them for this present application.

11.  The Applicant then submitted that there was news from last year that shows that the opposing political party in his country has become more powerful and a “doctor” had been killed by those affiliated with that party. However, he was unable to provide any documentary evidence and just stated that the news was on Youtube. As such, I refuse to admit such new evidence on the basis of failing the important influence and apparent credibility conditions under the Ladd v Marshall principle.

12.  All in all, I do not see any errors of law, procedural unfairness or irrationality in the TCAB Decision as alleged or otherwise, 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