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

HCAL 1399/2020

[2025] HKCFI 4163

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1399 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, naming only the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office as the Putative Respondent, and naming only the Director of Immigration as the Putative Interested Party; and

2.   Application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  The Applicant is a national of India.  By a Form 86 dated and filed on 6 July 2020 (“Form 86”), and a supporting affirmation also dated and filed on 6 July 2020 (“the Affirmation”), he sought leave to apply for judicial review of a decision of the Torture Claims Appeal Board (“TCAB”) (which is also a decision of the Non-Refoulement Claims Petition Office (“NRCPO”)) dated 14 May 2020 (“TCAB Decision”)[1], which was exhibited to his Affirmation.

2.  The Applicant sought an oral hearing of his application. He appeared at such on 6 August 2025, and said he had nothing to add in relation to his leave application.

3.  I will use the abbreviations and definitions from the TCAB Decision unless otherwise specified herein.

4.  I have amended the Form 86 to properly identify the putative respondent and the putative interested party.

Background

5.  This is set out in the TCAB Decision. I will not repeat the contents thereof, but in summary:

a.  The Applicant claimed non-refoulement relief on the basis that if he were sent back to India, he would be killed by members of the SAD, and prosecuted by the police in relation to a false murder case;

b.   The claim was assessed on the grounds of Torture Risk[2], BOR 2 Risk[3], BOR 3 Risk[4], and Persecution Risk[5] and was rejected by the Director of Immigration (“Director”) in a decision dated 13 April 2018 (“Director’s Decision”);

c.  The Applicant then petitioned/appealed to the TCAB/NRCPO, which held hearings in relation to the Applicant’s non-refoulement claims on 9 and 17 January 2020; and

d.   The TCAB/NRCPO handed down the TCAB Decision on 14 May 2020, in which the decision-maker held that the Applicant was not entitled to non‑refoulement relief on any of the relevant bases and confirmed the Director’s Decision.

Legal Principles

6.  An applicant, even one acting in person, is required to identify the grounds of judicial review clearly and succinctly in the Form 86, and to fully and frankly disclose all material facts and potential legal answers (Ho Loy & Another v Director of Environmental Protection, unrep.  HCAL 21/2015, 22 December 2016, Chow J. (as he was then) at §142; Leung Kwok Hung, unrep., HCAL 83/2012, 28 September 2013, Lam J. (as he was then) at §35; Begum Khadija [2018] HKCA 571; Khan Kamran [2020] HKCA 380).

7.  It is trite that the role of the Court in a judicial review is not to provide a further avenue of appeal, and that the Court should not usurp the role of the TCAB/NRCPO which is (and together with the Director are) the primary decision‑makers.  The assessment of evidence, COI materials, and credibility, risk of harm, state protection and viability of internal relocation are primarily within the province of the TCAB/NRCPO and the Director, which are entitled to make evaluations based on the evidence available and to decide the weight to be given to them.  While the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, the court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the TCAB/NRCPO.  (Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; Nupur Mst v Director of Immigration [2018] HKCA 524; Re Kartini [2019] HKCA 1022; Re Rupinder Singh [2021] HKCA 886).

8.  In order for me to give leave for judicial review, I have to be satisfied that there is an intended ground of review which is reasonably arguable, which is one that enjoys a realistic prospect of success (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676). As a leave application of this sort is meant to be a filtering process, I am not expected to give elaborate reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23).

Discussion

9.  As the Applicant has not identified or set out any grounds of judicial review in the Form 86 or Affirmation, there is no allegation of any procedural unfairness in relation to, of any error of law in, and/or of any irrationality/failure to meet the enhanced Wednesbury test in, the TCAB Decision.

10.  However, given the seriousness of the issues at hand, I have considered the TCAB Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard and bearing in mind the need for a high standard of fairness.

11.  The TCAB Decision set out the Applicant’s procedural and immigration history, the conduct of the Hearing, and the contents of the Applicant’s claims for protection as outlined in documents before the TCAB/NRCPO (Paragraphs 1 to 18). The decision-maker then, with reference to relevant principles and the evidence before it as referred to and discussed at the Hearing, assessed the credibility of the Applicant’s circumstances and made findings on relevant factual matters. In particular, she did not accept the core facts alleged by the Applicant in support of his claim, including that he was ever an actual or perceived supporter of the INC, was involved with the INC in any way, was ever a driver for Rana, was involved or attacked in any political incidents in India, was involved in a vehicle incident while driving for Rana or otherwise, or that he had been framed in the murder of an occupant of the other vehicle involved. She also did not accept that the Applicant was ever threatened, targeted for harm, or actually harmed in India at any time, that he fled India for any of the reasons claimed, or that he faced a real chance of harm of any kind (or death) in India for any of the reasons claimed (Paragraphs 19 to 59).

12.  The decision-maker went on to find, with regard to the above, that the claim for non‑refoulement relief in relation to each of the four types of risk was not substantiated and that the Applicant was hence not entitled to non-refoulement protection. She then refused the appeal/petition, and confirmed the Director’s Decision (Paragraphs 60 to 81).

13.  I do not, from my examination and scrutiny, see that the Applicant has any reasonably arguable case that there was procedural unfairness (bearing in mind the need for a high standard of fairness), an error of law, and/or irrationality/failure to meet the enhanced Wednesbury test that is sufficient to vitiate the TCAB Decision.  This is especially so as to the assessment, reasoning, and findings regarding the Applicant’s evidence and credibility, and hence as to risk of harm, which are all matters primarily within the province of the decision-making body, and consequently as to Torture Risk, Persecution Risk, BOR 3 Risk, and BOR 2 Risk.

14.  In the Affirmation, the Applicant says he is not satisfied with the TCAB Decision and claims “I cant(sic) go back to my country at this moment because my life is ‘not’ save(sic) in my own country. Please help me to stay here until my problem will be solved”. However, I do not see how such bare and unsubstantiated allegations are relevant to or assist his application for leave given the findings in, and my analysis of, the NRCPO Decision and the nature of judicial review proceedings.

15.  There is hence no basis for the court to intervene by way of judicial review, and I am not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success.

Conclusion

16.  In the circumstances, I have ordered that the application for leave to apply for judicial review be dismissed and made the other orders above.

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