VIKASDEEP SINGH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 422/2020

[2025] HKCFI 2018

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 422 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;

1.   The Form 86 is amended on the court’s own motion.

2.   The Leave Application be dismissed.

Observation for the Applicant:

Introduction

1.  By prescribed Form 86 filed on 16 March 2020, the applicant applied for leave to apply for judicial review (“Leave Application”).  The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 24 February 2020 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 17 October 2017 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on the ground of BOR 2 risk[1]. The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000422_2020_files/the_Board's_Decision.pdf

2.  Before the Board’s Decision, there was an earlier decision of the Board dated 3 February 2016 (“Board’s Earlier Decision”), in which the Board refused the applicant’s late filing of the appeal against the Director’s earlier decision dated 18 November 2015 (“Director’s Earlier Decision”). In the Director’s Earlier Decision, the Director dismissed the applicant’s non-refoulement claim on three other grounds, namely BOR 3 risk[2], torture risk[3] and persecution risk[4].  The Board’s Earlier Decision is not the subject decision of the Leave Application.

3.  In his Form 86, the applicant named the Director and Adjudicator of the Board “appointed to determine the Applicant’s Petition” as the proposed respondents and did not name any interest party. As the Board should have been the proper respondent and the Director the interested party, the Form 86 will be amended on the court’s own motion.

4.  The basis of the applicant’s claim is that he would be harmed by the Bharatiya Janata Party (“BJP”) due to his support for the rival Indian National Congress and his refusal to join the BJP or to vote for the BJP in the October 2014 election.  The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them.  Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

5.  Before the hearing on 9 May 2025, the applicant filed an affirmation asking for the withdrawal of the Leave Application. In it, the applicant stated that he wanted to go home as soon as possible as all the problems back home are “now finished”.  At the hearing in which the applicant attended in person, he confirms his application to withdraw. He also confirmed that he understood that the Board’s Decision will remain to be binding upon the court’s acceding to his application to withdraw.

Discussion

6.  The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[5]  It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

7.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[6], and further to make full and frank disclosure of all material facts to be verified by an affidavit.   

8.  In his Form 86, the applicant advanced the following grounds for judicial review:

(a)   The Board’s Decision(s) were unreasonable and unfair;

(b)   Insufficient importance or weight was given to state acquiescence; the applicant was tortured at the behest of state law enforcement agencies as well as those in the high ranks of political circles;

(c)   Though the Director listed relevant country of origin information (“COI”) that supported the applicant’s belief that the police in his country would not be able to protect him, such COI was not considered or given enough weight;

(d)   The Director showed an unfair attitude, and failed to meet the required high standards of fairness.

9.  However, from the grounds stated above, it is plain that most of the grounds the applicant advanced are not related to the Board’s Decision. Importantly, the applicant did not provide any particulars in support of his grounds.

10.  As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality.[7] Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness in the Decisions of the Director and the Board.  The applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision.  The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[8].

Withdrawal of the Leave Application

11.  In view of the discussion above,  I think it is appropriate, as a matter of practice, to dismiss the applicant’s Leave Application instead of merely granting leave to withdraw the Leave Application (Re Rini Artini [2020] HKCA 709 at§9).

Order

12.  The Form 86 is amended on the court’s own motion.

13.  The Leave Application be dismissed.

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