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HCAL 610/2020
[2025] HKCFI 3695
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 610 OF 2020
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Ravinder Singh |
Applicant |
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and
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Torture Claims Appeal Board
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Putative Respondent |
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and
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Director of Immigration
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Putative Interested Party |
Application for leave to apply for judicial review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)
Following:
Order by Deputy High Court Judge Michael WONG:
1. On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board” and the name of the putative interested party be amended to “Director of Immigration”.
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 14 April 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 13 March 2020. The Board’s Decision can be viewed in the following hyperlink:-
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000610_2020_files/the_Board's_Decision.pdf
2. The Board found that the applicant was unable to establish a real risk pertinent to any of the applicable grounds including BOR 2 Risk[1], BOR 3 Risk[2] and Persecution Risk[3] under the Unified Screening Mechanism (“the USM”). Hence, the Board dismissed the applicant’s petition and confirmed the decision of the Director of Immigration (“the Director”) dated 11 December 2018, which rejected the applicant’s non-refoulement claim.
3. The applicant had previously made a torture claim, which was rejected by the Director on 10 April 2013. The applicant appealed against that decision and the Board dismissed his appeal on 3 June 2013. Thus, the applicant’s Torture Risk[4] had been assessed and finally determined, and it was not necessary for the Board to deal with it again in the Board’s Decision.
Amendments
4. The applicant named “Ms Annie T.O.” as the putative respondent and the Board as putative interested party in Form 86, when the Board should be named as the putative respondent and the Director should be named as the putative interested party.
5. Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board”, and the name of the putative interested party is amended to “Director of Immigration”.
The applicant’s case
6. 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.
7. In sum, the applicant claimed for non-refoulement protection because he feared that if returned to India, his paternal uncle, Tarsam Singh (“TS”), would harm or even kill him, due to a land dispute. TS used to co-own a piece of land with the applicant’s late father. After his father died, TS took over his father’s share of the land illegally.
Grounds for judicial review
8. 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).
9. The applicant did not advance any ground for his intended judicial review in Form 86, nor in his supporting affirmation dated 14 April 2020.
Discussion
10. 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).
11. Thus, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any valid ground being advanced by the applicant for the intended judicial review.
12. In assessing the appeal by the applicant, the Board held an oral hearing on 18 November 2019. Thus, the applicant did have the opportunity to present his case to the Board in person.
13. The Board found the applicant’s evidence to be incredible, as there were numerous significant inconsistencies in the applicant’s written and oral evidence, which included:-
(1) whether the applicant and his family had ever reported the assaults by TS to any police station;
(2) the number of attacks by TS;
(3) the number of abuses by the police; etc.
14. The Board also found a fundamental flaw in the applicant’s case, ie TS could not get the share of the land even if he killed the applicant. If the applicant were killed, the share would go to his younger brother and then to his sister. The Board found it beyond imagination that TS would kill his three nephews and niece in order to get the other half share of the land, especially he had actually occupied the disputed land for 18 years at the time of the Board’s Decision. The Board was of the view that without its acceptance of the applicant’s version of events, there was no basis for the applicant to support his claim.
15. In any event, the Board found the applicant’s dispute with TS personal in nature and was not related to the Indian authorities. Though noting the problems of corruption and inefficiency of the Indian police, the Board also found from reliable country of origin information (“COI”) which indicated that India had taken positive measures to remedy its deficient police system. The Board had no doubt that the Indian state could offer effective protection to the applicant should he return there.
16. Further, the fact that the applicant was always safe on all the occasions when he stayed away from his home village supported the Board’s finding that internal relocation was a reasonable and safe option to the applicant.
17. With the availability of state protection and viability of internal relocation to the applicant, the Board found that even if the applicant’s version of events was credible, he was unable to establish his claim for non-refoulement protection.
18. The assessment of evidence, COI and risk of harm was primarily within the realm of the Board. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its decision.
19. This court noticed that the adjudicator, Mr Andrew Ma, signed the Board’s Decision as “Adjudicator of the Non-refoulement Claims Petition Office” instead of “Member of the Torture Claims Appeal Board”. This is not a correct description of his capacity, as he was not making the determination on behalf of the Non-refoulement Claims Petition Office. The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the members of the Board and does not have the capacity to determine non-refoulement claims itself.
20. Under the USM, the Chief Executive has delegated his powers under Article 48(13) of the Basic Law to members of the Board to hear and determine petitions in relation to claims made on all applicable grounds other than Torture Risk (see paragraph 3.7 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme). Thus, only the members of the Board have the powers to hear and determine the applicant’s petition.
21. Nevertheless, the wrong description of his capacity does not nullify the Board’s Decision, as Mr Ma was indeed a member of the Board and did have the power to determine the applicant’s petition.
22. 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.
23. As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys 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
24. For reasons aforesaid, the Leave Application is dismissed.
Dated the 19thday of August 2025
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( Irene LEE )
for Registrar, High Court |
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
Notes for the applicant:
If leave has been granted, the applicant or his solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent/Handed to the applicant/the applicant’s solicitors
on: 19 August 2025
Applicant’s ref. no:
Nil
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Sent/Handed to the putative respondent / the putative respondent’s solicitors / such putative interested parties as may be directed by the Court / the putative interested parties’ solicitors on: 19 August 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 14972/18/12/329/IN2965
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 4527/18
(Formerly as RBCZ 2001251/14)
QA T/C 179/10
(formerly RBCZ 348/07)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] Risk of violation of right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.
[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] Risk of persecution with reference to the non-refoulement principles under Article 33 of the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol.
[4] Risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
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