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

HCAL 163/2020

[2025] HKCFI 1455

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 163 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 on the court’s own motion.           

2.  The Leave Application be dismissed.

Observations for the Applicant:

Introduction

1.  By prescribed Form 86 filed on 15 January 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 9 January 2020 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 4 September 2018 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on all applicable grounds. The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000163_2020_files/the_Board's_Decision.pdf

2.  The basis of the applicant’s claim is that he would be harmed or killed by his paternal uncles after the applicant refused to sell to them, at a price below market value, the farmland he inherited from his grandfather. 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.

3.  In the Form 86, the applicant named the adjudicator of the board as the proposed respondent and the Board as the proposed interested party. As the Board should have been the proper proposed respondent, the Director the proper proposed interested party, the Form 86 will be amended accordingly on the court’s own motion.

4.  As the applicant had requested a hearing of the Leave Application, this court held a hearing on 28 March 2025. The applicant attended the hearing in person. After having heard from him, this court informed him that the decision would be reserved, and be sent to his updated address.

Discussion

5.  The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[1] It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

6.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[2], and further to make full and frank disclosure of all material facts to be verified by an affidavit. However, the applicant has identified no grounds at all in his Form 86 or otherwise.

7.  At the hearing, this court asked the applicant whether he had any grounds he wished to submit in support of the Leave Application. The applicant only stated that he has already submitted everything in his Leave Application, and has nothing further to submit.

8.  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.[3] In the present case, the Board had grave doubts as to the applicant’s credibility, and rejected his evidence. The Board also found that there was no real risk of harm upon refoulement, because nothing happened to the applicant during his stay in Delhi from late 2015 to January 2016. In addition, the Board found that effective state protection and internal relocation would be reasonably viable. The Board thus found that there was no real risk of harm. These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

9.  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 very 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, nor were such grounds identified in the Form 86 or his supporting affirmation. 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[4].

Withdrawal of Leave Application

10.  After the hearing, the applicant filed an affirmation on 10 April 2025. In the affirmation, the applicant stated that as all his problems are “now finished”, he wanted to go back to his country and applied to withdraw the Leave Application.

11.  Notwithstanding the absence of reasons given for the withdrawal, I am satisfied that the applicant's application is valid as there is an interpretation clause attached to the affirmation. Apart from the application to withdraw the Leave Application, there is nothing outstanding in this action. In the circumstances, I should grant leave to the applicant to withdraw the Leave Application, and hereby order the dismissal of the Leave Application: see Re Manik Md Mahamudun Nabi [2022] HKCA 471.

Orders

12.  The Form 86 be 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