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

HCAL 637/2020

[2025] HKCFI 3030

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 637 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 on the Court’s own motion, naming only the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office as the Putative Respondent, naming only the the Director of Immigration as the Putative Interested Party, and adding “Decision of Torture Claims Appeal Board/Non-Refoulement Claims Petition Office” before the words “06/04/2020”; and

2.   Leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  The Applicant is a citizen of India. By a Form 86 dated and filed on 14 April 2020 (“Form 86”), the Applicant sought leave to commence judicial review and, as regards the Judgment, order, decision or other proceeding in respect of which relief is sought, merely states “06/04/2020”.

2.  The Form 86 is accompanied by a supporting affirmation also dated and filed on 14 April 2020 (“the Affirmation”). That only says that the Applicant would like to reject and review his case which was rejected by the Torture Claims Appeal Board (“TCAB”), and exhibits a decision of the TCAB and Non-Refoulement Claims Petition Office (“NRCPO”) dated 6 April 2020 (“the TCAB Decision”)[1] relating to the Applicant’s claim for non-refoulement relief.

3.  No grounds for judicial review are set out in the Form 86 or the Affirmation.

4.  The Applicant did not seek an oral hearing of his application. I have hence dealt with such on paper.

5.  As the Applicant apparently seeks leave to commence a judicial review of the TCAB Decision, I have therefore amended the Form 86 of my own motion as set out above.

Background

6.  The salient portions of the Applicant’s background and case as to the incidents underlying his claim for non-refoulement relief, and the immigration and procedural history leading up to the TCAB Decision, are set out in the TCAB Decision (Paragraphs 1 to 23). I will not repeat them but, in essence and for present purposes:

a.  The Applicant claims for non-refoulement protection on the grounds of Torture Risk[2], BOR 2 Risk[3], BOR 3 Risk[4], and Persecution Risk[5]. He had the benefit of assistance from the Duty Lawyer Service when making his claim via the Non-Refoulement Claim Form (“NCF”), and when attending an interview in connection with such (“the Interview”). The basis on which he had advanced his claim in the NCF was that he feared he would be harmed or killed by supporters of the National Congress Party (“NCP”) as he had switched allegiance way from the NCP to an alliance between 2 other parties (“Alliance”), namely the Bharatiya Janata Party (“BJP”) and Shiromani Akali Dal Party (“SAD”);

b.  His claim for non-refoulement relief was rejected by the Director of Immigration (“the Director”) in a decision dated 12 November 2018 (“Director’s Decision”); and

c.  His appeal/petition to the TCAB/NRCPO was heard on 11 December 2019. At that hearing the Applicant, under oath, confirmed the contents of his NCF and the answers to questions in the Interview to be true and correct. He chose not to give evidence, but answered questions asked of him by the TCAB/NRCPO.

Legal Principles

7.  An applicant, even one acting in person, is required to identify the grounds of judicial review clearly and succinctly in the Form 86 (Ho Loy & Another v Director of Environmental Protection, (HCAL 21/2015, 22 December 2016) per Chow J. (as he was then) at §142).

8.  It is trite that judicial review is not a further avenue of appeal, and that the Court should not usurp the role of the TCAB/NRCPO which is (and together with the Director are) the primary decision‑makers. The assessment of evidence, COI materials, and credibility, risk of harm, state protection and viability of internal relocation are primarily within the province of the TCAB/NRCPO and the Director, which are entitled to make evaluations based on the evidence available and to decide the weight to be given to them. While the Court will adopt an enhanced standard in scrutinising a decision of the TCAB/NRCPO due to the seriousness of the issue at hand, the 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/NRCPO (Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; Nupur Mst v Director of Immigration [2018] HKCA 524; Re Kartini [2019] HKCA 1022; Re Rupinder Singh [2021] HKCA 886).

9.  In order for me to give leave for judicial review, I have to be satisfied that there is an intended ground of review which is reasonably arguable, which is one that enjoys a realistic prospect of success (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676).  As a leave application of this sort is meant to be a filtering process, I am not expected to give elaborate reasons for my decision (Re Zunariyah [2018] HKCA14, at §23).

Discussion

10.  As the Applicant has not identified or set out any grounds of judicial review, there is no allegation of any procedural unfairness in relation to, of any error of law in, and/or of any irrationality/failure to meet the enhanced Wednesbury test in, the TCAB Decision. However, given the seriousness of the issues at hand, I have considered the TCAB Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard and bearing in mind the need for a high standard of fairness.

11.  Further to Paragraphs 1 to 23 of the TCAB Decision, which I have considered and summarised above, there is a discussion (including as to burden and standard) of the relevant legal framework relating to assessing Torture Risk, BOR 3 Risk, and Persecution Risk. The relevant provisions are also cited (Paragraphs 24 to 32).

12.  The TCAB/NRCPO then outlined both what it had taken into account and the basis for the Applicant’s fears as stated in the prior NCF and Interview, before setting out the verbatim contents of certain questions and answers from the oral hearing. It then found that the Applicant was “devoid of any credibility whatsoever” due to a material and irreconcilable discrepancy at the heart of the Applicant’s case, and gave adequate reasons for doing so, with regard to relevant evidence and documents before it (Paragraphs 33 to 40).

13.  The TCAB Decision then goes on to find, even assuming that the Applicant’s assertions regarding his support for the Alliance (and hence fear of NCP supporters) were true, that such past events were insufficient to establish a claim for non-refoulement protection, that there was no basis for finding that the Applicant would be subjected to ill-treatment if refouled, and that in any case he could safely relocate to New Delhi (Paragraphs 41 to 45).

14.  It was then held that the Applicant had failed to establish Torture Risk given in particular the rejection of the claim he had suffered ill-treatment at the hands of NCP supporters, and in any event and assuming such had taken place the nature of such ill-treatment (Paragraphs 46 and 47). The Applicant had also failed to establish BOR 2 Risk, BOR 3 Risk, and (notwithstanding that it was satisfied that the Applicant was an Indian national presently outside India) Persecution Risk. Reasons were given for such conclusions (Paragraphs 48 to 55).

15.  Accordingly, and for reasons it had set out above, the TCAB/NRCPO rejected the appeal/petition and confirmed the Director’s Decision (Paragraphs 56 to 57).

16.  I do not, from my aforesaid examination and scrutiny, see that the Applicant has any reasonably arguable case that there was procedural unfairness (bearing in mind the need for a high standard of fairness), an error of law, and/or irrationality/failure to meet the enhanced Wednesbury test vitiating the TCAB Decision. This is especially so as to the assessment, reasoning, and findings regarding the risk of harm, and Torture Risk, Persecution Risk, BOR 3 Risk, BOR 2 Risk, which are all matters primarily within the province of the decision-making body and as to which adequate reasons were given.

17.  Given the TCAB/NRCPO Decision and the aforesaid analysis, I do not see that the Applicant’s application for leave is assisted by the contents of his Affirmation, and I do not see how they are relevant to the issues before me.

18.  I am not therefore not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success.

Conclusion

19.  In the circumstances, I have ordered that the application for leave to apply for judicial review 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