KULWANT SINGH v. TORTURE CLAIMS APPEAL BOARD

HCAL 938/2020

[2025] HKCFI 2821

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 938 OF 2020

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

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

1.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, the name of the putative interested party be amended to “Director of Immigration” and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 6 May 2020”.

2.  The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated and filed on 19 May 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of “Torture Claim Immigration Dept on USM claim” dated 6 May 2020. The applicant annexed a copy of the decision of the Torture Claims Appeal Board (“the Board”) dated 6 May 2020 (“the Board's Decision”) in his supporting affirmation dated 19 May 2020. It is clear that the applicant must be referring to the Board’s Decision in the Leave Application. The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000938_2020_files/the_Board's_Decision.pdf

2.  The Board confirmed the decision of the Director of Immigration (“the Director”) dated 29 August 2018, which rejected the applicant’s non-refoulement claim on all the applicable grounds under the Unified Screening Mechanism (“the USM”), and dismissed the applicant’s appeal/petition against the same.

Amendments

3.  In Form 86, the applicant named “Immigration dept” and “Torture Claim Appeal Board” as the putative respondents and the putative interested parties, when only the Board should be named as the putative respondent and only the Director should be named as the putative interested party.

4.  Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board” and the name of the putative interested party is amended to “Director of Immigration”.

5.  As aforesaid, the decision in respect of which relief is sought in the Leave Application should be the Board’s Decision. Thus, the decision in respect of which relief is sought is amended to “Torture Claims Appeal Board’s decision dated 6 May 2020” on this court’s own motion.

The applicant’s case

6.  It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

7.  In sum, the applicant claimed for non-refoulement protection because he feared being harmed or even killed by a man named Jeet and other fellow villagers due to a land dispute, if refouled to India.

Grounds for judicial review

8.  The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

9.  However, the applicant did not advance any ground for his intended judicial review in Form 86, nor in his supporting affirmation. He only stated in the affirmation that he was not satisfied with the decision of the Immigration.

Discussion

10.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

11.  Despite the lack of any specific ground being advanced by the applicant for the intended judicial review, this court will still examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irregularities.

12.  In assessing the applicant’s claim, the Board held an oral hearing on 28 November 2019. The applicant was present and adopted all the materials in the hearing bundle as being true and correct.

13.  The applicant had previously lodged a torture claim on 20 August 2007 and the Director rejected the torture claim on 8 February 2012. The applicant did not appeal/petition against that decision. The applicant was repatriated back to India in 2012 by way of a removal order. Even though his torture claim was rejected before, the Director allowed the applicant to make a subsequent fresh non-refoulement claim on all the applicable grounds, including Torture Risk[1]. Thus, the Board also assessed the applicant’s non-refoulement claim on all the applicable grounds including Torture Risk.

14.  The Board considered all the evidence very carefully and found that the applicant had not established a case of real risk of torture and the ill-treatment he received did not attain a minimum level of severity. The Board also found that it was not unreasonable or harsh for the applicant to relocate within India and there were reasonable police and state protection available to him. Thus, the Board rejected the applicant’s claim for non-refoulement protection on all the applicable grounds under the USM.

15.  The finding of facts relating to a non-refoulement claim is solely within the ambit of the Board. This court finds no errors of the Board in reaching its decision based on all the evidence before it.

16.  Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no error of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.

17.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be a reasonably arguable claim which enjoyed realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

18.  For reasons aforesaid, the Leave Application is 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