Md Samim v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1933/2020

[2025] HKCFI 4658

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1933 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) Martin Wong:

1.  The Applicant’s Form 86 be amended to name only 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 25 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 16 September 2020, which affirmed a decision by the Director of Immigration (the “DOI”) dated 26 September 2018 in refusing the Applicant’s non‑refoulement protection claim. He named the DOI and the TCAB adjudicator as the proposed respondents.

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

3.The Applicant requested for a hearing but he did not attend the scheduled hearing on 12 September 2025. Court record shows that the notice of hearing was sent to his correspondence address on 26 August 2025, which was updated through the Immigration Department on 25 August 2025. I see no reason why I should not proceed to deal with this application on paper despite his absence.

Background

4.The Applicant is a national of India. He seeks non-refoulement protection on the basis that he would be harmed by people of rival political 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

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 the Form 86 the Applicant raised a number of complaints against the TCAB Decision, e.g. that it was not reasonable or fair and giving inappropriate weight to various evidence placed before it. In his affirmation filed in support of this application, however, he did not point to any particular error of law, procedural unfairness or irrationality of the TCAB Decision.

7.Looking at the TCAB Decision, the TCAB took into consideration the Applicant’s case and evidence, and all materials placed before it, including the Applicant’s testimony at the hearing before it [15-62] and relevant COI [64-69]. After thoroughly analysing the same and assessing the Applicant’s credibility, the TCAB came to the finding that the Applicant’s allegations were not made out [70-98].

8.The TCAB further concluded that both state protection [99-104] and internal relocation [105-109] were both available to the Applicant, on the basis of a thorough consideration of the COI and applying the correct assessment approach [Appendix A].

9.The TCAB bore in mind the correct principles in respect of each of the four applicable grounds [Appendix A] and concluded that none was made out [110-118].

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

Dated the 14^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