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

HCAL 1287/2021

[2025] HKCFI 1907

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1287 of 2021

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 is amended on the court’s own motion

2.  The Leave Application be dismissed.

Observation for the Applicant:

Introduction

1.  By prescribed Form 86 filed on 13 September 2021, the applicant applied for leave to apply for judicial review (“Leave Application”) of the decision of the Torture Claims Appeal Board (“the Board”) dated 3 September 2021 (“Board’s Decision”). The Board had dismissed the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 9 January 2019 (“Director’s Decision”) who refused the applicant’s claim for non-refoulement protection.

2.  In his Form 86, the applicant named the Director and the Adjudicator of the Board as the proposed respondents and did not name any interested party. As the Board should have been the proper respondent and the Director the interested party, the Form 86 will be accordingly amended on the court’s own motion.

Background

3.  The background as taken from the Director’s Decision and Board’s Decision can be briefly stated as follows.

4.  The applicant is an Indian national. He surrendered himself to the Immigration Department on 12 March 2015. Upon enquiry, he stated that he entered Hong Kong without permission on 25 February 2015. On 18 June 2015, the applicant lodged a non-refoulement claim, covering all applicable grounds of torture risk[1], BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4] under the USM.[5] The claim was based on his fear of being harmed or killed by two of his uncles due to a dispute over his family farmland.

5.  The Director decided against the applicant’s claim on all applicable grounds. Hence, the appeal to the Board.

6.  On 16 August 2021, the applicant attended a hearing in person before the Board. The applicant refused to answer questions form the Board, despite the Board having expressly told him that he had questions about some aspects of his claims that were of concern. The Board had cautioned him that if he did not answer the Board’s questions, the Board would make a decision based on the written materials. The applicant only stated that everything he had to say was written in the documents and that he would not answer questions.

7.  The Board found that the basis of the applicant’s claimed entitlement to his grandfather’s land was unclear. The Board also found that the claim about the threat to his mother and brother was vague and uncertain, and that it was unclear why he could not continue living with his in-laws since after moving to their village, he had no contact with his two uncles. Due to the vagueness and lack of detail in the applicant’s claims and his refusal to answer questions about them, the Board concluded that his claim was either greatly exaggerated or completely untrue. Therefore, the Board found that there was no real risk of harm. The Board dismissed the applicant’s appeal and confirmed the Director’s Decision.

Legal principles applicable to judicial review

8.  As the Courts have repeatedly stated, determination of the merits of a non-refoulement claim is essentially a matter for the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them. A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error. 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: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

Discussion and conclusion

9.  The applicant’s Form 86 advanced the following grounds asserting judicial that the Board’s Decision/the Board:

(a)  was unreasonable and unfair;

(b)  had failed to give sufficient importance or weight given to state acquiescence;

(c)  failed to consider the country of origin information (“COI”) that supported the applicant’s belief that the police in his country would not be able to protect him.

10.  Having rigorously examined the Board’s Decision with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles relating to the four grounds mentioned above; correctly identified the issues, and observed a very high standard of fairness. I am satisfied that there were no errors of law or procedural unfairness in the Board’s Decision. In the absence of any specific grounds in support of the Leave Application, I find that it was perfectly open to the Board to come to its conclusion that the applicant failed to discharge his burden of proving the asserted fears and risks. In this case, I am satisfied that the Board was entitled to assess the credibility based entirely on the documents placed before it after the applicant had chosen not to answer questions from the Board . The Board has acted with highest standard of fairness when it expressly warned the applicant that adverse findings might be made against him.

11.  For these reasons, I am not satisfied that the Leave Application is reasonably arguable with realistic prospects of success such that would enable this court to grant leave: see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. The Leave Application is accordingly dismissed.

Withdrawal of Leave Application

12.  On 6 December 2024, the applicant filed an affirmation to apply to withdraw the Leave Application, stating that his problem in his country has been solved, and that he wants to go home.

13.  In view of the discussion above, I think it is appropriate, as a matter of practice, to dismiss his Leave Application instead of merely granting leave to withdraw the Leave Application (Re Rini Artini [2020] HKCA 709 at §9).

Orders

14.  The Form 86 is amended on the court’s own motion.

15.  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