Subba Seema v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

Case No.HCAL 3808/2019[2025] HKCFI 1485

Court

High Court CFI

Date11 Apr 2025

Judge—

Case Document

100%

HCAL 3808/2019

[2025] HKCFI 1485

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3808 of 2019

BETWEEN
	Subba Seema	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

consideration of documents only; or

consideration of documents and the Applicant being absent in open court;

Order by Deputy High Court Judge (Non-refoulement Claims) Martin Wong:

1. The Form 86 is amended on the Court’s own motion; and

2. Leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.By a Form 86 filed on 20 December 2019 (the “Form 86”), the Applicant applied for leave to apply for judicial review of both the decision of the Director of Immigration (the “DOI”) dated 10 September 2019 and the decision of the “Adjudicator” dated 6 December 2019.

2.Both the DOI and the “Adjudicator of the Non-refoulement Claims Petition offices appointed to determine the Applicant’s Petition” were named as the proposed respondent.

3.From the papers filed for this application, there was a decision made by the Torture Claims Appeal Board (the “TCAB”) dated 4 January 2022 (the “TCAB Decision”), which affirmed the decision of the DOI dated 10 September 2019. There was in fact no decision by either the TCAB or the DOI dated 6 December 2019.

4.I shall take it that the Applicant is seeking leave to review the TCAB Decision instead, as the hearing before the TCAB was de novo. For that purpose, the TCAB should be name the putative respondent and the DOI should be named as an interested party.

5.I amended the Form 86 accordingly on my own motion.

6.The Applicant requested for a hearing of this application but she was absent on the date of the hearing. I proceeded therefore to deal with this application on paper.

Background

7.The Applicant is a national of India. She seeks non-refoulement protection on the basis that she will be harmed or killed by her former boyfriend if she is returned to India. 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

8.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 & Anr 10 HKCFAR 676).

9.In her affirmation filed in support of the Form 86, the Applicant has only exhibited the decision by the DOI and has not stated any complaint against the same, not to mention any error of law, procedural unfairness or irrationality of this decision or for that matter any such problem with the TCAB Decision.

10.Looking at the TCAB Decision, the TCAB had before it all the evidence from the Applicant [8-29], and the TCAB carefully considered the same before coming to the conclusion that the risk of harm alleged by the Applicant was not established [30-39].

11.The TCAB then proceeded to analyse each of the four applicable grounds under the USM, identifying the correct legal principles to apply in each instance, and came to the conclusion that none of them was made out [41-52].

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

Conclusion

13.For the above reasons, I am not satisfied that this court should intervene by way of judicial review. I therefore dismiss the application.

Dated the 11^th day of April 2025

	( Seline Sze )
	for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 11/04/2025 Subba Seema Applicant’s ref. no: Nil		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 11/04/2025 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 16311/19/9/67/IN3124 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 640/19 (formerly RBCZ/l0475/19) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

[1] https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003808_2019_files/the_Board's_Decision.pdf