Inder Jeet v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3841/2019

[2025] HKCFI 1522

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3841 of 2019

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;

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

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

Observations for the Applicant:

Introduction

1.By a Form 86 filed on 24 December 2019 (the “Form 86”), the Applicant applied for leave to apply for judicial review of a decision by “Adjudicator of TCAB” dated 13 December 2019. He named the Torture Claims Appeal Board (the “TCAB”) as the proposed respondent and the Director of Immigration (the “DOI”) as an interested party.

2.From the papers filed for this application there was a decision by the TCAB dated 13 December 2019 (the “TCAB Decision”) confirming the decision by the DOI dated 31 January 2018 that refused the Applicant’s non-refoulement protection claim, so I take it that the Applicant is seeking judicial review of the TCAB Decision.

3.The Applicant requested for a hearing of this application and he attended the same.

Background

4.The Applicant is a national of India. He seeks non-refoulement protection on the basis that he will be harmed or killed by a person affiliated with an opposing political party in India if he is 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 & Anr (2007) 10 HKCFAR 676).

6.In his affirmation filed in support of the Form 86, the Applicant did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision.

7.At the hearing of this application, the Applicant submitted a copy of a medical report apparently issued in 2021 and 2 photographs showing a damaged motorcycle. He stated that the medical report pertains to his son, who was allegedly shot by his “enemy” in India, and the photos show that his home in India was attacked.

8.The medical report does not show how the injuries recorded therein came to be afflicted, much less by whom. There is also no indication from the 2 photographs how the motorcycle came to be damaged or by whom. As such, these new evidence do not in my view satisfy the important influence requirement under the Ladd v Marshall test and I shall not admit them. In any event, they would not have changed my analysis below.

9.In his affirmation filed in support of the Form 86, the Applicant asked this Court “to find weakness of Director and adjudicator and exercise court power and grand my leave” [sic.] and did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision.

10.Looking at the TCAB Decision, the Applicant’s case all evidence available at that point were presented to the TCAB [8-21], including COI [46-55].

11.The TCAB also identified the correct legal principles to apply in respect of each of the four applicable grounds under the USM [23-38] as well as the correct principles of assessment [39-45].

12.With all the above in mind, the TCAB carefully analysed the evidence and came to the conclusion that the Applicant’s allegations were not established and that none of the applicable grounds was made out [56-78].

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

Conclusion

14.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 12^th day of May 2025

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