NARINDER RAM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3588/2019

[2025] HKCFI 1557

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3588 of 2019

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 application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By Form 86 dated 3 December 2019, the Applicant applies for leave to apply for judicial review (“the Leave Application”) of the decision of the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (“the Board”) dated 20 November 2019 (“the Board’s Decision”) confirming the decision of the Director of Immigration (“the Director”) dated 17 November 2017 (“the Director’s Decision”), which rejected his non-refoulement claim on all applicable grounds under the Unified Screening Mechanism (USM).

Background

2.  The material facts of this case, including the Applicant’s personal background, the incidents alleged in support of his claim that he would be harmed or killed by his girlfriend’s family in India, and the immigration and procedural history, etc. have been set out comprehensively in the Board’s Decision. It is unnecessary to repeat them all over again. For completeness’ sake, reference can be made to the Board’s Decision, the hyperlink to which is included below[1]. Unless otherwise specified, the Board’s abbreviations and descriptions are adopted herein.

Discussion

3.  In view of the seriousness of the issues at hand, I have rigorously examined and anxiously scrutinized the Board’s Decision, applying an enhanced standard as required by law (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14), and am satisfied that the Board had correctly set out the burden and standard of proof, the law and key legal principles, assessed the evidence, COI materials, risk of harm, state protection and viability of internal relocation, and observed a very high standard of fairness.

4.  I am not remotely convinced that the Applicant has shown that his intended challenge of the Board’s Decision on the grounds below is reasonably arguable with any realistic prospects of success (see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676):

(1)  “The Respondent had unlawfully fettered his discretion by refusing the applicant’s appeal on the grounds that they did not satisfy the requirement.”

(2)  “The Adjudicator acted in a procedurally unfair manner in dealing with the Applicant’s appeal.”

(3)  “The Respondent’s decisions to refuse the Applicant’s appeal were unreasonable or irrational in the public law sense or are a result of procedural errors or unfairness.”

(4)  “The Respondent failed to meet the greater care and duty owed to a self­represented claimant.”

(5)  “The Applicant believes he was not given a fair opportunity to keep forward his submissions in an oral hearing nor he was invited to submit written submissions. When the Applicant filled in the Appeal Form, the Applicant was only asked to write grounds for appeal but that will not count as an opportunity to reply to submissions made by the representatives of the Director of Immigration.”

(6)  “Furthermore, the Torture Claims Appeal Board has significantly relied on the source of news which is not officially recognized or it is simply hearsay. They have also relied on some cases which are fairly outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations that it is safe for him to return back to his country of origin.”

5.  It is inadequate for the Applicant to make merely vague and bare assertions in his Form 86. It is plain that none of his grounds contain any useful particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in reaching the Board’s Decision. It is unclear in what way had the Board allegedly unlawfully fettered its discretion or that the Adjudicator had allegedly acted in a procedurally unfair manner. He has also failed to identify, with sufficient clarity, the source of news or COI materials relied on by the Board that were not officially recognized or were outdated.

6.  It is also contrary to truth for the Applicant to complain of not being given opportunity to put forward his submissions at the oral hearing, when the record clearly shows that he was being able to give evidence and to answer questions raised of his claim and with proper translation before the Board. As can be seen from the Board’s Decision, it was the Applicant who confirmed that he did not want to call any witnesses and he had no other documents for the appeal. After the Board went through each of his documents to confirm their truth and accuracy, he was given an opportunity to address further on his claim before he was asked questions. He however confirmed that he had nothing to add. At the end of the Board’s questions, he confirmed that he did not wish to clarify any of his answers. He also did not wish to make any final submissions before the Board closed the hearing (see §§7-8 of the Board’s Decision).

7.  It was primarily within the province of the Board to assess evidence, COI materials, risk of harm, state protection and viability of internal relocation. In the absence of any errors of law, procedural unfairness, or irrationality, the Court would not reopen the Board’s findings and decide the case afresh for the Applicant. The role of the Court in a judicial review is not to provide a further avenue of appeal: 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, etc.

Conclusion

8.  For these reasons, I make an order that Form 86 be amended as described above and 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