MANDEEP SINGH v. TORTURE CLAIMS APPEAL BOARD

HCAL 930/2020

[2025] HKCFI 2952

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 930 OF 2020

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

	consideration of the documents only; or
	consideration of the documents and oral submissions by the applicant in open court;

1.   On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, “Director of Immigration” be added as the putative interested party and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 3 June 2019”.

2.   The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated and filed on 19 May 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of two decisions, namely:-

(1) the decision of the Director of Immigration (“the Director”) dated 5 March 2018 (“the Director’s Decision”); and

(2) the decision of the Torture Claims Appeal Board ("the Board") dated 3 June 2019 (“the Board’s Decision”). 

2.  The Board’s Decision can be viewed in the following hyperlink:

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000930_2020_files/the_Board's_Decision.pdf

3.  At the oral hearing before this court on 8 May 2025, this court explained to the applicant that only the Board’s Decision is reviewable by judicial process and not the Director’s Decision, as the Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali [2018] HKCA 549). 

4.  In response, the applicant confirmed that the decision in respect of which relief is sought should only be the Board’s Decision.  Thus, the Leave Application is only in respect of the Board’s Decision.

5.  The Board found that the applicant was not entitled to non-refoulement protection in Hong Kong on any of the applicable grounds under the Unified Screening Mechanism (“the USM”).  Hence, the Board dismissed the applicant’s appeal/petition against the Director’s Decision and confirmed the same.

Amendments

6.  The applicant wrongly named the Director and the adjudicator of the Non-refoulement Claims Petition Office as the putative respondents when the Board should be the putative respondent.  The applicant also did not name any putative interested party in Form 86. 

7.  This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and add “Director of Immigration” as the putative interested party.

8.  As aforesaid, the applicant confirmed that the Leave Application is in respect of the Board’s Decision only.  Hence, on this court’s own motion, the decision is respect of which relief is sought is amended to “Torture Claims Appeal Board’s decision dated 3 June 2019”.

The applicant’s case

9.  It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

10.  In sum, the applicant claimed for non-refoulement protection as he would be at risk of being harmed by his uncle and his uncle’s son because of a land dispute.  He also claimed that he was not safe in India and could not complain to authorities, and that it would be difficult for him to survive there without a house and money.

Late application

11.  By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant has to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made.

12.  However, the applicant filed Form 86 on 19 May 2020, which is more than 11 months after the Board’s Decision (made on 3 June 2019).  The applicant was hence late for more than 8 months in making the Leave Application, and this court has to consider whether there is any good reason to extend the time for the applicant to make the Leave Application.

13.  As held in AW v Director of Immigration [2016] 2 HKC 393, the criteria for granting an extension of time are:

(i)      the length of the delay;

(ii)     the reason for the delay;

(iii)    the merits of the intended application; and

(iv)    any prejudice to the putative respondent and to public administration.

14.  The applicant did not make any application for extension of time and provided no explanation for the delay when he filed the Leave Application.  Nevertheless, at the oral hearing on 8 May 2025, the applicant explained that the delay in making the Leave Application was due to the COVID-19 pandemic when he had to stay at home most of the time. 

15.  A delay of more than 8 months is substantial.  Although it is understandable that the applicant might have some difficulties in coming to court to file the Leave Application during the pandemic, it is still not impossible for him to file such an application during that time if he so wished.  Thus, the applicant’s explanation for the delay is not accepted.

16.  Moreover, as discussed below, there is no merits of the intended judicial review at all.  It is not right to extend the time for the applicant to pursue a hopeless application for judicial review.  Thus, this court is not prepared to extend the time for the applicant to file the Leave Application.  The Leave Application can be dismissed on the ground of being made out of time alone.

Grounds for judicial review

17.  The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

18.  However, the applicant failed to identify any ground for the intended judicial review in Form 86, nor in his supporting affirmation dated 19 May 2020.

19.  At the oral hearing on 8 May 2025, when this court asked the applicant to explain the grounds for his intended judicial review, the applicant simply said that he had no idea as he had no legal knowledge. Apart from that, the applicant had nothing further to say.  Thus, the applicant did not advance any ground for the intended judicial review at the oral hearing either. 

Discussion

20.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

21.  Thus, despite that the applicant did not advance any ground for the intended judicial review, this court will still scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.

22.  In assessing the applicant’s appeal, the Board held an oral hearing on 10 January 2019.  After considering the totality of the applicant’s evidence and his claims, the Board did not consider that the applicant was a credible witness or that his claims were credible.  The Board did not accept that the applicant or his father had a land dispute with his uncle and/or his uncle’s son resulting in any physical altercations or injuries, or that the applicant feared harm from his uncle and his uncle’s son as a result of the claimed land dispute.  Thus, the Board concluded that the applicant was not entitled to non-refoulement protection on any of the applicable grounds under the USM.

23.  Although the Board did not consider availability of state protection and viability of internal relocation, as the applicant’s claims and the matters giving rise to his claims for non-refoulement protection were rejected in their entirety, it was not necessary for the Board to consider the availability of state protection.

24.  As to internal relocation, it is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that he qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997).  In other words, internal relocation only arises if the applicant has established a real risk of persecution in his home area (see Gardi v SSHD [2002] 1 WLR 2755).

25.  As it is the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm, it is not necessary for the Board to consider internal relocation.

26.  The assessment of evidence and risk of harm are primarily within the realm of the Board.  This court finds no errors of the Board in reaching its decision based on all the evidence before it.

27.  Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof.  The Board also correctly identified the issues and observed a very high standard of fairness.  This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision. 

28.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be a reasonably arguable claim which enjoyed realistic prospects of success.  It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

29.  For reasons aforesaid, the Leave Application is dismissed for being made out of time as well as for lack of merits.

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