Mohni v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
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HCAL 1744/2020 [2025] HKCFI 4442 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1744 of 2020
Application for Leave to Apply for Judicial Review Following;
Order by Deputy High Court Judge (Non-Refoulement Claims) Martin Wong:
Observations for the Applicant: Introduction 1.By a Form 86 filed on 31 August 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 24 August 2020 (the “TCAB Decision”), which affirmed a decision by the Director of Immigration (the “DOI”) dated 5 April 2017 in refusing the Applicant’s non-refoulement protection claim on the basis of BOR2 risk. He named the TCAB as proposed respondent and both the TCAB and the DOI as interested parties. 2.I amended the Form 86 on my own motion to name only the DOI as a putative interested party. 3.As the case record shows, the Applicant had previously applied for non-refoulement protection under the other 3 grounds under the USM, which was refused by the DOI by his decision of 12 September 2014 and the refusal was later upheld by the TCAB by its decision of 3 January 2017 (the “Previous TCAB Decision”). The Applicant is not seeking judicial review of the Previous TCAB Decision and is way out of time to do so anyway. 4.The Applicant requested for an oral hearing but he did not attend the scheduled hearing on 3 September 2025. I see from the court record that the notice of hearing was sent on 21 August 2025 to the updated correspondence address, which was provided through the Immigration Department by a letter of 20 August 2025. I therefore see no reason why I should not proceed to deal with this application on paper despite his absence at the hearing. Background 5.The Applicant is a national of India. He sought and seeks non-refoulement protection on the basis that members of an opposing political party wanted to kill him because he refused to leave his own party and join them. His personal background, the relevant facts and relevant procedural history have been sufficiently set out in the Previous TCAB Decision, which can be assessed through a hyperlink[1], and I shall not repeat the same herein. Discussion 6.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). 7.In his affirmation filed in support of this application, the Applicant raised a number of matters as his grounds for relief. In gist, it is alleged that the TCAB had not fairly, procedurally and substantively, dealt with the appeal and its decision was unreasonable or irrational. 8.Turning to the TCAB Decision, it transpired that the Applicant was in fact invited in writing to submit information he wished the TCAB to consider but he never responded to the letter despite it being sent to his address last known to the TCAB [8]. The fact that the Applicant received the TCAB Decision, which must have been mailed to him at also the address last known to the TCAB, indicates that the Applicant was not unaware of the invitation but simply ignored it. This resulted in the TCAB having no new information before it other than what was placed before it at the hearings that led to the Previous TCAB Decision (which the Applicant did attend and gave oral evidence), and there can be no valid complaint arising from this. 9.Having only what it had, the TCAB cannot be faulted for relying on the factual analysis and findings it had reached in the Previous TCAB Decision in assessing the Applicant’s alleged BOR2 risk. Chief among which were that the Applicant was found not to be an honest or credible witness ([33] Previous TCAB Decision) and rejection of the Applicant’s allegation of attacks and death threats ([42, 59] Previous TCAB Decision). 10.Further, the TCAB had in fact in the TCAB Decision referred to then recent COI and came to the conclusion that state protection and internal relocation were available to the Applicant [10], and rejection of the allegation of risk to life [11]. 11.All in all, I do not see any error of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny. Conclusion 12.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 29th 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
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Cases cited in this judgment