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

HCAL 1954/2020

[2025] HKCFI 4660

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1954 of 2020

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 only the TCAB as the putative respondent and only the DOI as a 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 29 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 September 2020, which affirmed a decision by the Director of Immigration (the “DOI”) dated 4 May 2018 in refusing the Applicant’s non‑refoulement protection claim. He named the TCAB adjudicator as the proposed respondent and the TCAB as an interested party.

2.  I amended the Form 86 on my own motion naming only the TCAB as the putative respondent and only the DOI as a 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 harmed by his creditor who had a powerful political connection if he was 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

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 particular error of law, procedural unfairness or irrationality of the TCAB Decision.

7.  Looking at the TCAB Decision, the TCAB took into consideration the Applicant’s case and evidence, and all materials placed before it [7-12]. After thorough analysis of the same and the Applicant’s testimony at the hearing before it, came to the finding that the Applicant’s allegations were not made out [23-35].

8.  The TCAB, with in mind the correct principles in respect of each of the four applicable grounds under the USM and the assessment approach [13-21], further concluded that none was made out [36-39].

9.  I therefore 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