SAHAB SINGH v. NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 735/2020

[2025] HKCFI 2912

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 735 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 the Applicant being absent in open court;

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

Observations for the Applicant:

1.  By a Form 86 filed on 22 April 2020 (“Form 86”), the Applicant sought leave for judicial review of the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“TCAB”) made on 8 April 2020 (“the TCAB Decision”).  A copy of the TCAB Decision can be viewed by the following hyperlink[1].

2.  The TCAB Decision was made pursuant to a petition/appeal from a decision of the Director of Immigration (“DI”) dated 16 November 2017.  In the Form 86, DI was also named as a putative respondent, which was incorrect.  I amended the Form 86 on my own motion to name DI as a putative interested party.

3.  The Applicant was absent from the oral hearing of this leave application.  On the authority of Re Abdus Salam [2019] HKCA 1091, I proceed to deal with the leave application based on the materials placed before me.

4.  In his Form 86 and supporting affirmation, the Applicant did not point to any errors of law, procedural unfairness or irrationality of the TCAB Decision.  According to the TCAB Decision, TCAB conducted an oral hearing for the Applicant’s appeal/petition.  After hearing, TCAB found that, as per the Applicant’s own evidence, neither he nor his family has ever been harmed by the brother of the Applicant’s grandfather, the source of his claimed fear for returning to Uttar Pradesh, India.  The Applicant’s claimed belief that his grandfather’s brother is capable of such acts was found to be speculative.  Further, the Applicant was said to have failed to establish any basis for a finding that he would be the target of such harm.  In the absence of any finding on risk of ill-treatment, it followed the Applicant’s appeal/petition was dismissed.  

5.  It has been reiterated time and again that the primary responsibility for the factual assessment of whether any risk of ill-treatment exists lies with TCAB.  In the absence of any errors of law, procedural unfairness or irrationality, the Court would not reopen TCAB’s findings or make a determination on the case afresh.  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).

6.  I have reviewed the TCAB Decision vigorously, but do not find the proposed judicial review reasonably arguable.  The leave application is thus 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