MOHAMMED BABAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 156/2023

[2026] HKCFI 3141

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 156 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 the DOI as the 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 3 February 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 25 November 2022 (the “TCAB Decision”), which affirmed a decision by the Director of Immigration (the “DOI”) dated 8 August 2018 in refusing the Applicant’s non-refoulement protection claim under three of the applicable grounds under the USM.  He named the TCAB adjudicator as the proposed respondent and the TCAB as the interested party.

2.  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.

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 India.  He seeks non-refoulement protection on the basis that he would be killed by people from whom he borrowed money and also 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

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, 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 bore in mind the correct legal principles in respect of each of the three applicable grounds before it [7-22].

8.  The TCAB took into consideration the Applicant’s case and evidence, including his testimony at the hearing before it, relevant Country of Origin Information, as well as additional evidence submitted after the hearing.  After thorough analysis and assessment, came to the findings and conclusions that none of the Applicant’s allegations was made out [23-118, 128].

9.  Further, the TCAB found and concluded that internal relocation would in any event be available to the Applicant [119-127].

10.  Lastly, the TCAB found and concluded that none of the grounds before it was made out either [129-137].

11.  I 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 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