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

HCAL 1658/2020

[2025] HKCFI 5087

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1658 of 2020

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following;

	consideration of documents only;          or
	consideration of the documents and oral submissions by the Applicant in open court;

1.  Form 86 be amended, 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.

2.  The application for leave to apply for judicial review (including any associated application for extension of time) be dismissed.

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 14 August 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review against (i) the decision by the Torture Claims Appeal Board (the “TCAB”) dated 10 June 2020 (the “2^nd TCAB Decision”), which affirmed the decision of the Director of Immigration (the “DOI”) dated 21 April 2017; and (ii) the DOI’s decision dated 24 February 2016.

2.  The 2^nd TCAB Decision only concerned the Applicant’s claim under Article 2 of the Hong Kong Bill of Rights Ordinance (“BOR2”). On the other hand, the DOI’s decision dated 24 February 2016 concerned the rejection of the Applicant’s claim under the remaining 3 grounds (torture risk, persecution risk and Article 3 of the Hong Kong Bill of Rights Ordinance), and this led to a separate decision from the TCAB dated 10 March 2017 (the “1^st TCAB Decision”) affirming the DOI’s decision. The procedural chronology is set out in [3-4] of the 2^nd TCAB Decision.

3.  I note that the Applicant’s supporting affirmation (paragraph 6) stated that he wished to apply for leave for judicial review against “all decisions made against [him] in relation to [his] non-refoulement claim”.

4.  To err on the side of caution, I am prepared to regard the Form 86 as an application for leave to apply for judicial review against both the 1^st TCAB Decision and the 2^nd TCAB Decision. Procedurally there cannot be a judicial review of the DOI’s decision dated 24 February 2016 because that had been subsumed into the 1^st TCAB Decision.

5.  I amend the Form 86 on my own motion to only name the TCAB as the putative respondent and only the DOI as the putative interested party.

6.  The Applicant requested for a hearing of this application and he attended the same.

Background

7.  The Applicant is a national of India. He seeks non-refoulement protection on the basis that he would be harmed if he is to return to his home country as a result of a switch of his political allegiance from the Congress Party (“CP”) to the Akali Dal (“AD”). The Applicant contends that there were assaults, attacks and threats made and/or organized by CP against AD and himself personally, including an attempt to kidnap the Applicant (but it was unsuccessful). The Applicant further relied on a false criminal charge of murder brought against him by the nephew of a CP member (who was also a leader of the Applicant’s village). The Applicant’s personal background, the relevant facts and relevant procedural history have been sufficiently set out in the 1^st and 2^nd TCAB Decisions, which can be viewed through a hyperlink[1] [2]. I shall therefore not repeat them.

Discussion

8.  The leave application operates as a filtering process and there is no requirement or expectation to give elaborate reasons for my decision: Re Zunariyah [2018] HKCA 14 at [23]. It is sufficient to state my observations after considering both TCAB Decisions and the materials adduced by the Applicant.

9.  I remind myself that in a judicial review, this court does not provide a further avenue of appeal. Though in non-refoulement cases an enhanced standard in scrutinizing the decision of the TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI are the primary decision-makers. A finding of fact is exclusively within the realm of the TCAB, and this 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: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)]. There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

10.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (unreported, HCAL 21/2015, 22 December 2016) at [142], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

11.  The Applicant did not point to any error of law, procedural unfairness or irrationality in any of the 1^st and/or 2^nd TCAB Decisions in the Form 86. Rather, in his affirmation in support, the Applicant essentially complained that there was no legal representation or language assistance provided to him, he did not manage to fully understand the documents and the decisions, and that the TCAB / DOI exercised their “case management power wrongfully” (paragraph 20 of his supporting affirmation).

12.  As can be seen from the TCAB Decision, the TCAB took into account all the evidence available [1^st TCAB Decision 7-17, 2^nd TCAB Decision 6-17] and found that on the basis of the same, applying also the correct legal principles in respect of the four applicable grounds [1^st TCAB Decision 20-31, 2^nd TCAB Decision 21-32] and taking into account Country of Origin information [1^st TCAB Decision 35, 37, 2^nd TCAB Decision 48-53], the Applicant’s allegations were insufficient to make out any of the applicable grounds [1^st TCAB Decision 38-54, 2^nd TCAB Decision 33-58]. In particular, the TCAB found the Applicant’s evidence to be incredible in the 2^nd TCAB Decision (in sharp contradistinction with the TCAB’s findings in the 1^st TCAB Decision) [2^nd TCAB Decision 35-43].

13.  Further, the TCAB also concluded that state protection and internal relocation were available on the basis of the available evidence [1^st TCAB Decision 40-42, 47-50, 2^nd TCAB Decision 47-57]. These were conclusions that the TCAB was fully entitled to come to.

14.  As to the grounds raised by the Applicant in the affirmation, as the Applicant himself acknowledged, there was no automatic right to legal representation. As to his alleged language disabilities, I note that in both hearings before the TCAB he had the assistance of a Punjabi interpreter [1^st TCAB Decision 6, 2^nd TCAB Decision 5]. He also had an interpreter helping him at the hearing before me, so that if he actually needed any help in understanding what the 2 TCAB Decisions said or decided, there was ample opportunity to do so.

15.  At the hearing the Applicant also emphasised to me that the danger still remained. It is however not a matter that is relevant to the issues at hand.

16.  All in all, I do not see any errors of law, procedural unfairness or irrationality in the 1^st or 2^nd TCAB Decisions, despite rigorous examination and anxious scrutiny. The Applicant’s intended challenge to the 2 decisions is not reasonably arguable, and accordingly the application for leave to apply for judicial review is dismissed. I further note that the application against the 1^st TCAB Decision was brought out of time, given that Order 53 rule 4(1) requires the leave application to be taken out within 3 months after the 1^st TCAB Decision was made. Since I have held that the application is without merit, I also refuse to grant an extension of time. For completeness, I consider the explanation offered by the Applicant (that he thought all his non-refoulement claims have “always been one case and determined altogether”, paragraph 7 of his affirmation) to be wholly unsatisfactory because the Applicant should have known that there were 2 separate sets of ongoing proceedings throughout.

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