YOUNUS MOHAMMAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1833/2020

[2025] HKCFI 4637

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1833 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 TCAB as the putative respondent and 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 15 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 4 September 2020 (the “TCAB Decision”), which affirmed a decision by the Director of Immigration (the “DOI”) dated 3 October 2018 in refusing the Applicant’s non-refoulement protection claim. He named the DOI and the Adjudicator of the Non-refoulement Claims Petition Office as the proposed respondents.

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

3.  The Applicant requested for a hearing and 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 ill-treated or even killed by his former business partner with a politically powerful brother. 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.  The Applicant in the Form 86 raised a number of complaints as grounds for relief. In gist, he complained that (a) the TCAB Decision is not reasonable or fair, (b) the TCAB failed to give proper weight to evidence and arguments and (c) the procedure was unfair.

7.  Looking at the TCAB Decision, the TCAB took into consideration all the materials placed before it, including the Applicant’s case and evidence given at the hearing before it [11-71], and relevant COI [73-78]. After thorough analysis, the TCAB came to find that the Applicant’s allegations were not made out [79-103, 110-112].

8.  The TCAB borne in mind the correct principles [Appendix A] in analysing each of the four applicable grounds under the USM and concluded that none was made out [113-116].

9.  The TCAB further concluded that state protection [104-106] and internal relocation [107-109] were available to the Applicant.

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

Conclusion

11.  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