SARBJEET SINGH v. TORTURE CLAIMS APPEAL BOARD

HCAL 392/2023

[2025] HKCFI 1983

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 392 OF 2023

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 / the Applicant being absent in open court;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 35-year-old national of India who on 20 November 2015 submitted a written signification to the Immigration Department for non-refoulement claim for protection on the basis that if he returned to India he would be harmed or killed by his girlfriend’s cousins who objected to their relationship.

2.  However, before he submitted his Non-refoulement Claim Form (“NCF”) as required by Section 37Y under Part VIIC of the Immigration Ordinance, Cap. 115 for the Director of Immigration (“Director”) to commence the determination of his non-refoulement claim, the Applicant on 10 April 2017 in writing to the Immigration Department requested to withdraw his claim as it was safe for him to return to his home country, and by a letter dated 18 April 2017 the Director accepted the Applicant’s request and accordingly treated his claim as withdrawn, and confirmed that no further action would be taken as regard his claim.

3.  Less than a month later on 4 May 2017 the Applicant in writing requested to re-open his claim, and accordingly the Director by a letter dated 12 May 2017 required him to provide further information and evidence to support his request in compliance of Section 37ZE (2)(a) of the Immigration Ordinance to satisfy an immigration officer that since the withdrawal there had been a change of circumstances that could not reasonably have been foreseen by him when he earlier withdrew his claim, and that when taken together with the material previously submitted for his claim could increase the prospect of success of the claim.

4.  The Applicant never replied or responded to the Director’s letter or provided any further information in support of his request, and by a letter dated 13 June 2017 the Director therefore refused his request to re-open his claim.

5.  More than 5 months later on 11 December 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but as his notice of appeal was filed outside the 14-days period required under Section 37ZS of the Ordinance, and in pursuance of Section 37ZT (2) the Board proceeded to decide by way of a preliminary decision without a hearing whether to allow the late filing of his notice of appeal, and by a decision dated 22 March 2018 the Board refused to allow the late filing of the Applicant’s notice of appeal, but which decision was subsequently quashed by the High Court, and that the appeal was remitted to the Board for fresh determination.

6.  On 31 May 2022 the Board allowed the late filing of the Applicant’s notice of appeal, and proceeded to hear his appeal on 29 September 2022 and 25 October 2022 during which the Applicant gave oral evidence and information in support of his claim and appeal, and also answered questions raised by the Adjudicator for the Board.

7.  By a decision dated 3 March 2023 the Board dismissed the Applicant’s appeal upon finding his explanation for withdrawing his claim in April 2017 after being told by his mother in India of no more problems with his girlfriend’s cousins over their relationship but that one month later in May 2017 that he wanted to re-open his claim after being told by his brother not to return to India was not credible or acceptable, nor did it amount to a change of circumstances that could not reasonably have been foreseen by him, that his subsequent failure to respond to the Director’s request to provide further information in support of his request to re-open his claim was not acceptable or reasonable, nor when taken together with the material previously submitted for his claim could it increase the prospect of success of the claim on the factual basis of even his own case of the low intensity and frequency of past ill-treatments said to have been inflicted by his girlfriend’s cousins in those 2 previous fights between them without any injuries to the Applicant, and that in any event it was just some private personal dispute between the Applicant and his girlfriend’s cousins only without any official involvement that state protection would be available to the Applicant upon his return to India that there is simply no prospect of success at all in his intended non-refoulement claim or any special circumstances in his case which may render it unjust not to re-open his case.

8.  On 15 March 2023 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his Form and supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)  That the Board was in breach of procedural fairness in that it had unlawfully fettered its discretion by refusing his appeal on the grounds that they did not satisfy the requirement;

(2)  That the Adjudicator acted in a procedurally unfair manner in dealing with his appeal;

(3)  That the Board’s decisions to refuse his appeal were unreasonable or irrational in the public law sense or the result of procedural errors or unfairness;

(4)  That the Board failed to meet the greater care and duty owed to a self-represented claimant;

(5)  That the Board had significantly relied on the source of news not officially recognized or were simply hearsays or outdated;

(6)  That the Adjudicator reached the wrong decision in assessing the Applicant’s claim without proper inquiry or careful understanding of his situation;

(7)  That the hearing bundle was given to the Applicant only a few days before his scheduled appeal hearing before the Board with the majority of the documents in English thereby giving him insufficient time to prepare for his appeal due to his limited skills in English and being unrepresented that it was procedurally unfair to the Applicant.

9.  These are however just bare and vague assertions of the Applicant containing a few key words or phrases but without any necessary or relevant particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or how did the Adjudicator fail to make proper enquiry or to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what source of news relied on by the Board were not officially recognized or were simply hearsay or outdated. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for his intended challenge.

10.  The only remaining complaint of his that the hearing bundle for his appeal to the Board was given to him just a few days before his appeal hearing before the Board with the majority of documents in English that he was not given sufficient time to prepare for his appeal, the Applicant never produced any evidence such as the covering letter which accompanied the hearing bundle or the envelop to show the actual postmark to show that the provision of the hearing bundle was indeed late. In any event it is clear from his notice of appeal as well as his previous correspondences with the Director which were all written in English that either he has no problem with the language or had had adequate help with the preparation of his appeal during which he was able to make proper representation of his case with the assistance of an interpreter that he never raised any issue about the hearing bundle. In the circumstances, I do not find any merit in this complaint either.

11.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: 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.

12.  In the Applicant’s case, the Board rejected his appeal for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim and appeal, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

13.  Furthermore, the fact is that it has also been established by the Board the risk of harm in his proposed claim based on the factual basis of his own case even if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

14.  Having considered the decision of the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in it, nor any failure on its part to apply high standards of fairness in its consideration and assessment of the Applicant’s claim and appeal.

15.  Moreover, the Applicant recently on 28 February 2025 filed an affirmation requesting to withdraw his application as he now wants to return to his home country.

16.  In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation of his wish to return to his home country, I accordingly dismiss his leave application.

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