TM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE [Decision on Leave Application]

TM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE [Decision on Leave Application]

Leave to apply for judicial review was granted because the applicant established a realistic prospect of success: the Board may have erred in law and acted unfairly by excluding adoption of material evidence from the previous Board hearing and by failing to properly consider/consult medical evidence regarding PTSD, thereby risking non-compliance with the statutory duty under section 37ZI and exposing the decision to successful judicial review.

Citation
[2023] HKCFI 2662
Parties
Applicant: Applicant; Putative Respondent: Torture Claims Appeal Board/Non-refoulement Claims Petition Office; Putative Interested Party: Director of Immigration
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
16 November 2023
Case Number
HCAL1570/2021
Procedural Posture
Application for Leave to Apply for Judicial Review / Leave to Apply for Judicial Review Granted (directions to Issue Originating Summons)
Outcome
Leave to apply for judicial review of the Board's Decision granted
Legal Topics
Non Refoulement, Torture Claim, Procedural Fairness, Leave to Apply for Judicial Review, Evidence Adoption From Prior Hearing, Credibility Assessment, Internal Relocation
Source Language
EN
Administrative Law Immigration Law Constitutional Law Human Rights Law Asylum and Refugee Law Non Refoulement Torture Claim Procedural Fairness +4 more

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Parties

Applicant

Applicant

Torture Claims Appeal Board/Non-refoulement Claims Petition Office

Putative Respondent

Director of Immigration

Putative Interested Party

Procedural Posture

Application for Leave to Apply for Judicial Review / Leave to Apply for Judicial Review Granted (directions to Issue Originating Summons)

Legal Issues

  1. 1 Whether the Board erred in law by refusing to adopt oral evidence given at the previous Board hearing
  2. 2 Whether refusal to accept prior oral evidence and to accommodate medical evidence alleging PTSD amounted to procedural unfairness
  3. 3 Whether the Board complied with the statutory duty in section 37ZI to consider all relevant considerations

Ratio Decidendi

Leave to apply for judicial review was granted because the applicant established a realistic prospect of success: the Board may have erred in law and acted unfairly by excluding adoption of material evidence from the previous Board hearing and by failing to properly consider/consult medical evidence regarding PTSD, thereby risking non-compliance with the statutory duty under section 37ZI and exposing the decision to successful judicial review.

Court Disposition

Leave to apply for judicial review of the Board's Decision granted

Orders

  • Applicant must issue originating summons for judicial review within 14 days in accordance with Order 53 rule 5 RHC
  • Serve order granting leave and any directions on respondent and interested parties within 14 days (Order 53, r.4A)