SUBBA SABINA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 830/2023

[2026] HKCFI 3280

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 830 OF 2023

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 as the putative respondent; 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 29 May 2023 (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 24 April 2023 (the “TCAB Decision”), which affirmed a decision by the Director of Immigration (the “DOI”) dated 11 October 2021 in refusing the Applicant’s non-refoulement protection claim.  She named the TCAB adjudicator as the proposed respondent and the DOI as an interested party.

2.  I amended the Form 86 on my own motion to name the TCAB as the putative respondent.

3.  The Applicant requested for a hearing and she attended the same.  When asked if she had anything to add, she confirmed that she had not.

Background

4.  The Applicant is a national of India.  She seeks non-refoulement protection on the basis that she would be harmed by her uncle who had sexually abused her.  Her 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.

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 the Form 86, the Applicant asserted that the TCAB adjudicator was in breach of procedural fairness, in having unlawfully fettered his discretion, acted in a procedurally unfair manner, making an unreasonable or irrational decision, and failed to meet the greater care and duty owed to a self-represented claimant.

7.  However, there was no particulars whatsoever supplied for any of the above complaints.  They remain bare assertions.

8.  In her affirmation filed in support of this application, the Applicant raised a number of matters in complaint.

9.  She firstly complained that she did not have sufficient time to prepare for the hearing before the TCAB and she was not assisted legally or in terms of language.  As to legal assistance, it has been held repeatedly by the Court of Appeal that free legal representation at all stages of the proceedings is not an absolute right.  The Applicant was represented by the Duty Lawyer Service when submitting her NCF and hence the high standard of fairness was attainted as it was the most important stage of her claim.

10.  As for language, this complaint is contrary what the TCAB had recorded in the TCAB Decision, namely that the Applicant was assisted by an interpreter at the hearing [7]; adopted what she said in the NCF and at the interview with the Immigration Department [28]; and that the Applicant had answered questions asked by the adjudicator [34-43].  I note in particular that her affirmation came as a typed-up document entirely in English, and there was no interpretation clause therein to show that the Applicant required such assistance to understand the contents.

11.  She then complained that the TCAB had relied on Country of Origin Information (“COI”) which was not officially recognised and relied on outdated cases.  There are firstly no particulars given at all as to what COI or cases the Applicant was referring to.  More importantly, the cases cited by the TCAB were all correct and currently applicable, and the COI referred to were materials issued by bodies such as the UK Home Office and the CIA.

12.  Lastly, she complained that there was no screening for his claim under the BOR 2 ground and the same went directly to appeal.  This is simply not true, as recorded in the TCAB Decision, the Applicant was interviewed by the Immigration Department on all four grounds under the USM in September 2021 and all were rejected in October 2021 [4, 6].

13.  In gist, there is nothing in the above that establishes or supports any grounds for judicial review.

14.  Looking at the TCAB Decision, the TCAB bore in mind the correct assessment principles [9-14], took into consideration the Applicant’s case and evidence, including her testimony at the hearing before it and relevant COI [15-30, 66-68].

15.  After thorough analysis and assessment, the TCAB came to find and conclude that none of the Applicant’s allegations was made out [33-65, 69-88].

16.  Then, with in mind the correct legal principles in respect of each of the four applicable grounds under the USM, the TCAB found and concluded that none was made out [89-109].

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

Conclusion

18.  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