Karre Srinivas v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
|
HCAL 1668/2020 [2025] HKCFI 4242 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1668 OF 2020
Application for Leave to Apply for Judicial Review NOTIFICATION of the Judge’s decision (Ord 53 r 3) Following:
Order by Deputy High Court Judge (Non-refoulement Claims) Vincent Lung:
Introduction 1.By a Form 86 filed on 17 August 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review against the decision by the Torture Claims Appeal Board (the “TCAB”) dated 11 March 2019 (the “TCAB Decision”), which affirmed the decisions of the Director of Immigration (the “DOI”) dated 19 March 2018. He named the TCAB and the DOI both as proposed respondents and interested parties. 2.I amend the Form 86 on my own motion to name only the TCAB as the putative respondent and the DOI as the putative interested party. 3.The Applicant requested for a hearing of this application 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 his life would be in danger if he is to go back to India, because his business partner (who is a supporter of the Indian National Congress Party) and his 4 to 5 followers had a money dispute with the Applicant. The Applicant’s personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be viewed through a hyperlink[1]. I shall therefore not repeat them. Discussion 5.The leave application operates as a filtering process and there is no requirement or expectation to give elaborate reasons for my decision: Re Zunariyah [2018] HKCA 14 at [23]. It is sufficient to state my observations after considering the TCAB Decision and the materials adduced by the Applicant. 6.I remind myself that in a judicial review, this court does not provide a further avenue of appeal. Though in non-refoulement cases 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. A finding of fact is exclusively within the realm of the TCAB, and 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 at [14(1)]. There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. 7.In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (unreported, HCAL 21/2015, 22 December 2016) at [142], and further to make full and frank disclosure of all material facts to be verified by an affidavit. 8.The Applicant did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision in the Form 86. In his affirmation in support, he said that he barely understands English and he was not provided with interpretation assistance, so when the TCAB Decision was provided to him he could not understand it. Somehow this is said to constitute a wrongful exercise of case management power (at [16-17]) or unfairness (at [18]). 9.As can be seen from the TCAB Decision, the TCAB took into account all the evidence available [17-33] and found that on the basis of the same, applying also the correct legal principles in respect of all four applicable grounds [7-16], the Applicant’s allegations were insufficient to make out any of the applicable grounds [34-48]. 10.Further, the TCAB also concluded that state protection and internal relocation were available on the basis of the available evidence [41, 49-54]. 11.Specifically, I do not consider that there was any wrongful exercise of case management powers or unfairness as contended by the Applicant (his complaint is that the TCAB Decision was allegedly not translated to him), for the simple reason that I am now ascertaining whether there are grounds for the TCAB Decision itself to be judicially reviewed. In any case, an interpreter was present at the hearing before me to assist the Applicant, so he would be able to fully understand the TCAB Decision and make appropriate submissions to point out any errors in the decision if he had wished to (in fact this was one of the Applicant’s own requests as stated in his affirmation [16]), so any prior unfairness (which I find none) would have been cured and remedied. 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. The Applicant’s intended challenge to the TCAB Decision is not reasonably arguable, and accordingly the application for leave to apply for judicial review is dismissed. I further note that the application was brought out of time, given that Order 53 rule 4(1) requires the leave application to be taken out within 3 months after the TCAB Decision was made. Since I have held that the application is without merit, I also refuse to grant an extension of time. Dated the 18th day of September 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
|
Cases cited in this judgment