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

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

1.   The Form 86 be amended to name the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office as the putative respondent, its decision dated 15 April 2021 as the decision sought to be reviewed and the Director of Immigration as the putative interested party;

2.   Extension of time to file Form 86 be refused; and

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

Observations for the Applicant:

1.  By a Form 86 filed on 19 August 2021 (“Form 86”), the Applicant sought leave for judicial review of a rejection of his non-refoulement claim without naming any putative respondent.  He did not even put down any date of decision or attach a copy of decision he challenged.  From a copy of a decision later obtained by the Court from the Secretariat of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB/NRCPO”), which can be viewed by the following hyperlink[1], it is plain that a decision dated 15 April 2021 was made by it on the Applicant’ claim.  The TCAB/NRCPO’s decision was made pursuant to a petition/appeal from a decision of the Director of Immigration (“DI”) dated 27 September 2018.  

2.  In the oral hearing before this Court, the Applicant confirmed that the decision he sought to challenge was the one made by TCAB/NRCPO on 15 April 2021.  In the circumstances, paragraph 1 of the above orders is made to properly reflect the status of the parties to the proceedings.

3.  The Applicant is an Indian national.  His non-refoulement claim was based on an alleged risk of being harmed by the family members of a person who claimed that the Applicant had impregnated her. After an oral hearing, the TCAB/NRCPO accepted part of his factual case but attached no weight to particular incidents such as an alleged threat by a family member of the said person.  The Applicant was assessed as having no applicable ground under the Refugees Convention for a fear of persecution, there was no genuine or substantial risk of ill‑treatment triggering Bill of Rights protection, torture risk was not applicable, there was available State protection and reasonable internal relocation alternative.  On those reasons, his non-refoulement claim was rejected.

4.  The Applicant has no ground of judicial review in the papers he filed and the oral hearing before this Court.  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 the TCAB/NRCPO. In the absence of any errors of law, procedural unfairness or irrationality, the Court would not reopen the its 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).

5.  I have reviewed the TCAB/NRCPO’s decision in this case vigorously, but do not find the proposed judicial review reasonably arguable.  I also note that the filing of the Form 86 was a few weeks after the 3-month limitation period under Order 53 of the Rules of the High Court.  The Applicant has made no explanation for the delay.  In my view, the delay was short and there was no prejudice to any putative parties if extension of time is granted.  However, because of the lack of substantive merits in this application, I am not prepared to extend time. 

6.  Extension of time to file Form 86 be refused, and 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