KOHLI NARINDER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 724/2020

[2025] HKCFI 3297

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 724 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 be amended to name the TCAB as the putative respondent and the DI as the putative interested party; and

2.  The application for leave to apply for judicial review be granted.

Observations for the Applicant:

1.  By a Form 86 filed on 21 April 2020 (“Form 86”), the Applicant sought leave for judicial review of the Director of Immigration (“DI”)’s decision dated 17 April 2020.

2.  In the supporting affirmation of the Form 86, however, a copy of the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“TCAB”) dated 17 April 2020 (“the TCAB Decision”) was instead exhibited. The TCAB Decision was made pursuant to a petition/appeal from a decision of the DI dated 22 October 2018.

3.  It is obvious that the Applicant’s real target is the TCAB Decision as the DI’s decision is no longer susceptible to judicial review after an appeal to the TCAB has been pursued (Re Moshin Ali [2018] HKCA 549). I amended the Form 86 on my own motion to name the TCAB as the putative respondent and the DI instead as the putative interested party.

4.  The Applicant is an Indian national. He claimed to be the supporter of the Indian National Congress (“Congress”), a political party in India. His non-refoulement claim was based on an alleged dispute between him and an influential individual (referred to as “BS” in this decision for convenience sake) connected to another political party called Shiromani Akali Dal (“Akalidal”), which was the ruling party in the province of Punjab immediately before the Applicant left India in November 2016. Upon an assessment of the Applicant’s risks of being tortured, persecuted and having his rights under the Hong Kong Bill of Rights violated, the TCAB dismissed the petition/appeal and refused the Applicant’s claim.

5.  Having read the TCAB Decision, I am satisfied that the proposed judicial review is reasonably arguable. In my view, the following assessments in the TCAB Decision might have been tainted by errors of law:

(a)  In the section under the heading “Persecution Risk”, the TCAB categorized the Applicant’s fear of ill-treatment as “purely a private and personal matter involving differences in political views and competition” and that said the matter “was not associated with any government authorities and/or government officials” at paragraph 39 of the TCAB Decision;

(b)  The TCAB made a further statement at paragraph 40 of the TCAB Decision that “[t]here was nothing connected with … political opinion as stated in the Refugee Convention” in the Applicant’s non-refoulement claim;

(c)  The TCAB did not make any negative credibility finding against the Applicant’s assertions in this case. It was part of the Applicant’s claim before the TCAB that (i) during election campaigns, Congress’s supporters and Akalidal’s supporters would confront each other; (ii) the Applicant had been attacked when he was requested by people he knew to be associated with BS to leave Congress or stop taking part in political activities; (iii) Akalidal won the local council election and BS was a Member of Council in that area; (iv) the local police did not carry out any genuine or diligent investigation into the incidents of attacks the Applicant reported to them because of BS/Akalidal’s status;

(d)  The TCAB’s statements at paragraphs 39-40 tend to show that the TCAB might have (i) misunderstood the Applicant’s case; (ii) failed to appreciate that “a well-founded of persecution”, under the Refugees Convention 1951, could come from either State authorities or non-State actors/agents (see, for example, Horvath v Secretary of State for the Home Department [2001] 1 AC 489); and/or (iii) failed to appreciate the concept of “imputed political opinion”, i.e. a political opinion which might not have been held by the persecutee but which was attributed to him by his/her persecutor (see, for example, Regina (Gaviria) v Secretary of State for the Home Department [2002] 1 WLR 65).

6.  One may argue that the TCAB’s findings, based on country of origin information, that the Indian authorities would exercise due diligence in upholding the rule of law in India even against members/leaders of political parties (paragraph 29) and the Applicant had an internal relocation alternative (paragraphs 51-57) might cause the outcome of the TCAB Decision to be “inevitably” the same, so that it is not reasonably arguable any relief will be granted by judicial review. However, as the TCAB’s understanding of the Applicant’s case and the meaning of “persecution” was fundamental to the holistic analysis that it was required to conduct, I find it necessary for the potential errors of law to be more fully canvassed.

7.  Leave to apply for judicial review is granted. The Applicant shall pay heed to the “Notes for the Applicant” below and follow the necessary procedure in order to pursue the application for judicial review.

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