SUKHWANT KAUR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1767/2020

[2025] HKCFI 4635

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1767 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 DOI as a putative interested party; and

2.  The application for leave to apply for judicial review be dismissed.

Introduction

1.  By a Form 86 filed on 3 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 17 August 2020 (the “TCAB Decision”), which affirmed a decision by the Director of Immigration (the “DOI”) of 27 November 2018 in refusing the Applicant’s non-refoulement protection claim. She named the TCAB as the proposed respondent and named both the TCAB and the DOI as interested parties.

2.  I amended the Form 86 on my own motion to name only the DOI as a putative interested party.

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 if she was returned she would be harmed or even killed by her husband due to matrimonial disputes. 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.

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 her affirmation filed in support of this application, the Applicant raised a number of matters as her grounds for relief. In gist, it is alleged that the TCAB had not fairly, procedurally and substantively, dealt with the appeal and its decision was unreasonable or irrational.

7.  Turning to the TCAB Decision, the TCAB took into account the Applicant’s case and evidence placed before it [15], relevant COI [18-28] and applied the correct principles [5-14] in analysing each of the four applicable grounds under the USM, before coming to the conclusion that none was made out [29-50].

8.  The TCAB further concluded that state protection [28] and internal relocation [51-57] were available to the Applicant.

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

Conclusion

10.  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