PETER PRASATH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3813/2019

[2025] HKCFI 1700

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3813 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;

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 20 December 2019 (the “Form 86”), the Applicant applied for leave to apply for judicial review of a decision dated “11-December 2019” and named the “Director of Immigration/Torture Claims Appeals Board” as the proposed respondent.

2.  From the papers filed for the application, there was a decision by the Torture Claims Appeal Board (the “TCAB”) dated 11 December 2019 (the “TCAB Decision”), which affirmed the decision by the Director of Immigration (the “DOI”) dated 27 April 2017. I take it that the Applicant is seeking judicial review of the TCAB Decision.

3.  Accordingly, I amended the Form 86 on my own motion to name the TCAB as the putative respondent and the DOI as the putative interested party.

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

Background

5.  The Applicant is a national of Sri Lanka. He seeks non-refoulement protection on the basis that if he is returned he will face a real risk of torture and CIDTP, persecution etc. by the Sri Lankan Government and paramilitary groups of opposing political affiliation. 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

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 affidavit filed in support of the Form 86, the Applicant only stated that he wished to have the TCAB Decision “recheck” [sic.] and did not point to any errors of law, procedural fairness or irrationality of the TCAB Decision.

8.  At the hearing, he submitted some documents in the French language of various dates in 2022 and informed me that these documents pertain to his brother’s situation in France. Although I do not read French, based on what the Applicant told me at the hearing about these documents I do not see any relevance to his present application.

9.  Looking at the TCAB Decision, all of the available evidence and submissions were placed before the TCAB [29-143], after careful and extensive consideration, the TCAB came to the conclusion that it was not satisfied that the Applicant will face more than a remote risk of harm if he was to be returned [144-214], or for that matter in the reasonably foreseeable future [215].

10.  The TCAB further analysed each of the four applicable grounds under the USM, identifying in each instance the correct legal principles to apply [15-28], and came to the conclusion that none of them was made out [216-219].

11.  As such, I do not see any errors 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 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