Alam Mahboob v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1814/2020

[2025] HKCFI 4478

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1814 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 oral submissions by the Applicant in open court;

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

1.  The Applicant’s Form 86 should be amended to name the TCAB as the putative respondent and 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 11 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 30 June 2020 (the “TCAB Decision”), which affirmed a decision by the Director of Immigration (the “DOI”) dated 10 January 2019 in refusing the Applicant’s non‑refoulement protection claim.  He named the adjudicator as the proposed respondent and 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 the DOI as a putative interested party.

3.The Applicant requested for a hearing and he attended the same.  When asked if there was anything he wanted to add, he said that due to long lapse of time and the stress brought about by the process he was unable to remember or gather anything further to submit or produce.

Background

4.The Applicant is a national of India.  He seeks non-refoulement protection on the basis that if he was returned, he would be harmed or even killed by gang members with whom he and his father had a land dispute.  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 & Anor (2007) 10 HKCFAR 676).

6.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.

7.Looking at the TCAB Decision, the TCAB took into account the Applicant’s case and representations made [2-11], including relevant COI [30-31].  It applied the correct principle in relation to whether an oral hearing would be required and concluded that it was not necessary for the fair disposal of the appeal [26].

8.The TCAB bore in mind the correct principles on the four applicable grounds under the USM [14-24], thoroughly analysed each [27-40]

9.The TCAB further concluded that state protection [32-33] and internal relocation [41-47] were both available to the Applicant.

10.I 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 should intervene by way of judicial review.  I therefore dismiss the application.

Dated the 10^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