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

HCAL 831/2020

[2025] HKCFI 4757

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 831 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 in accordance with [4] and [6] of the Form Call-1.

2.  The applicant’s application for leave to apply for judicial review against the Board’s Subsequent Decision 9 October 2020 be dismissed.

Observations for the Applicant:

Introduction

1.  By a “Notice of application to apply for leave for judicial review” in the prescribed Form 86 filed on 7 May 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 19 October 2018 (“Board’s Decision”) dismissing the applicant's appeal against the decision of the Director of Immigration (“Director”) dated 17 January 2017 (“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/HCAL000831_2020_files/Earlier_Board's_Decision.pdf

2.  After the Board’s Decision, the applicant was repatriated back to India on 17 December 2018. The applicant however came back to Hong Kong again illegally on 2 January 2020. Subsequently, the applicant lodged a new non-refoulement claim (“Subsequent Claim”) on all applicable grounds. An immigration officer allowed the applicant to file a subsequent claim pursuant to s.37ZO of the Immigration Ordinance. On 29 June 2020, the Director rejected the applicant's non-refoulement claim on all applicable grounds (“Director’s Subsequent Decision”). The applicant’s appeal against the Director’s Subsequent Decision was dismissed by the Board by its decision dated 9 October 2020 (“Board’s Subsequent Decision”).

3.  On 20 October 2020, the court received a letter from the applicant dated 19 October 2020. In the letter, the applicant stated that he had made a mistake in the Form 86 regarding the subject decision of the Board in the Leave Application. Instead of the decision dated 19 October 2018, it should have been the Board’s decision dated 9 October 2020.

4.  According to the applicant’s letter above, the applicant’s intended challenge in the Leave Application is the Board’s Subsequent Decision. Procedurally, the applicant should have filed another Form 86 to challenge the Board’s Subsequent Decision especially that when the applicant filed the present Leave Application, the Board’s Subsequent Decision had in fact not yet been delivered. However, if the court were to require the applicant to file a new application now, he would have been seriously out of time. In the circumstances, having regard to the need for procedural economy and expediency, I would treat the applicant’s letter as an application to amend the date of the Board’s decision under challenge in the Form 86, and so allow. The Leave Application is treated as if it is an application to challenge the Board’s Subsequent Decision.

5.  The Board’s Subsequent Decision can be viewed at the following hyperlink:

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000831_2020_files/the_Board's_Decision.pdf

6.  Further, in the Form 86, the applicant named the Director as the proposed respondent as well as the interested. As the Board should have been the proper respondent, the Form 86 shall be amended accordingly on the court’s own motion.

7.  The basis of the applicant’s Subsequent Claim was the same as his previous claim, which was that, if refouled, he would be harmed or killed by the chairman of the ruling party, Shiromani Akali Dal after his workers were convicted of murder on the strength of the witness statement provided by the applicant. The Board’s reasoning and findings were set out in detail in the Board’s Subsequent 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 Subsequent Decision.

8.  As no request for a hearing was made, this court will determine the Leave Application without a hearing: O 53, r 3 (3) of the Rules of the High Court.

Discussion

9.  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.

10.  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. The Form 86 and the supporting affirmation, which were in relation to the Board’s Decision provided none at all. The applicant filed no further affirmation to support his intended challenge to the Board’s Subsequent Decision.

11.  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 found that the applicant’s core assertions had been fabricated and were wholly unreliable. The Board did not accept that the applicant was a credible or reliable witness. The Board also found that there was no evidence that the applicant had suffered physical and or mental suffering of the requisite severity. The Board concluded that he would not face real risk of harm if refouled. It further found that there was no evidence that state protection would not be reasonably available. These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

12.  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 high standard of fairness. The applicant has not advanced any grounds in support of the Leave Application. The applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision. 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].

Order

13.  The Form 86 be amended in accordance with [4] and [6].

14.  The applicant’s application for leave to apply for judicial review against the Board’s Subsequent Decision 9 October 2020 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