Ansar Hossain v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1864/2020

[2025] HKCFI 4638

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1864 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 the Applicant being absent in open court;

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

1.  The Applicant’s Form 86 be amended to name the TCAB as the putative respondent and only the DOI as a putative interested party; and

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

Observations for the Applicant:

Introduction

1.By a Form 86 filed on 18 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 25 March 2020 (the “TCAB Decision”), which affirmed a decision by the Director of Immigration (the “DOI”) dated 22 November 2018 in refusing the Applicant’s non-refoulement protection claim. He named the adjudicator of the TCAB as the proposed respondent and named the TCAB as an interested party.

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

3.The Applicant requested for a hearing but he was absent at the scheduled hearing on 5 September 2025. The court record shows that the Notice of Hearing was sent to his correspondence address on 21 August 2025, which was updated by the Immigration Department’s letter of 20 August 2025. I see no reason why I should not proceed to deal with this application on paper despite his absence.

4.This application is plainly out of time and there is no application made for extension of time. Although there is no application for an extension of time to file the Form 86, I would still proceed to consider the merits of the application in determining whether extension of time should be granted to entertain this application.

Background

5.The Applicant is a national of India. He seeks non-refoulement protection on the basis that he would be harmed or even killed by people of an opposing political party and opposing religious affiliation if he was 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

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 did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision.

8.Looking at the TCAB Decision, with the correct approach to the appeal and assessment of evidence in mind [5, 8-58], the TCAB considered the Applicant’s case and all the materials placed before it [6-7], including the relevant COI and the Applicant’s testimony in that regard [37-51], thoroughly analysed the same and came to the finding that the Applicant’s allegations were not made out [59-85].

9.The TCAB then proceed to analyse each of the four applicable grounds under the USM, bearing in mind the correct principles applicable to each, and concluded that none was made out [86-123].

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 would have intervened by way of judicial review even if time were to be extended. I therefore dismiss the application.

Dated the 9^th day of October 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