Due to the torturously slow process of the screening process before the Immigration Department, the lack of a comprehensive screening mechanism until recent years, and the low quality of many of the reviews before the Torture Claims Appeal Board, many non-refoulement claimants in Hong Kong find themselves having endured long years in limbo of forced destitution just to have a fair chance for their claims to be properly heard and decided.

The Applicant, V, is no exception.  V fled Sri Lanka due to fear of harm of being suspected as a member of the LTTE, and made a torture claim as early as 2008. More than fifteen years later, the Court on 17 October 2023 granted leave for him to apply for judicial review against the Torture Claims Appeal Board’s refusal of his non-refoulement claim.  In his decision, Deputy High Court Judge Bruno Chan found that:-

1. The Board failed to make any consideration in relation to the each of the Applicant’s sources of risks under the applicable grounds of non-refoulement protection, but instead took an unsound approach of a “global view” on the aggregate amount of risk faced by the Applicant, and which is contrary to the Board’s own internal guidelines;
2. It is reasonably arguable that such a “global view” approach to risk of harm has significantly affected or coloured the Board’s assessment of the evidence, and its application of the correct legal test for, inter alia, persecution risk;
3. In particular, the Board also failed to make a separate consideration under each of the applicable grounds when their legal tests or criteria are obviously not the same and the Board is required to make such separate assessment.

Accordingly, leave to apply for judicial review was granted on all four grounds that (1) the Board was flawed in its assessment of persecution risk, (2) there were irrational findings based on conjecture and speculation, (3) the Board failed to investigate and take into account of relevant country-of-origin information, and also (4) the Board failed to adequately assess the availability of internal relocation.

While the Court did not grant leave to apply for judicial review on the Board’s subsequent decision on right to life to the Applicant, it nevertheless indicated it will be willing to hear submissions on whether risk to life should also be reconsidered as a matter of fairness.

We are grateful to have the assistance of Mr. Timothy Parker of Denis Chang’s Chambers (instructed by Daly & Associates) assigned by the Director of Legal Aid.

Read the full judgment here.