|
HCAL 975/2020
[2025] HKCFI 2164
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 975 OF 2020
| BETWEEN |
|
|
|
Gurcharan Singh |
Applicant |
|
and
|
|
|
Torture Claims Appeal Board
|
Putative Respondent |
|
and
|
|
|
Director of Immigration
|
Putative Interested Party |
Application for leave to apply for judicial review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)
Following:
Order by Deputy High Court Judge Michael WONG:
1. On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board” and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 5 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 22 May 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision of the Immigration Department dated 5 May 2020. However, there was no such decision. The decision of the Torture Claims Appeal Board (“the Board”) regarding his appeal/petition against the decision of the Director of Immigration (“the Director”) dated 7 September 2018 (“the Director’s Decision”) was made on 5 May 2020 (“the Board’s Decision).
2. The applicant confirmed at the oral hearing on 20 May 2025 that the Board’s Decision is the one in respect of which relief is sought 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/HCAL000975_2020_files/the_Board's_Decision.pdf
3. The Board decided that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”) and confirmed the Director’s Decision accordingly.
Amendments
4. The applicant wrongly named the Immigration Department as the putative respondent in Form 86. As the applicant confirmed that the Board’s Decision is the one in respect of which relief is sought in the Leave Application, the Board should be the putative respondent.
5. Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board”, and the decision in respect of which relief is sought is amended to “Torture Claims Appeal Board’s decision dated 5 May 2020”.
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 his life would be in danger if refouled to India, as he had a land dispute with his brother-in-law named Kuldeep, who was a member of the Bharatiya Janata Party.
Oral hearing
8. The applicant requested for an oral hearing of the Leave Application. His case was heard on 20 May 2025.
9. At the hearing, apart from confirming the Board’s Decision is the decision in respect of which relief is sought in the Leave Application, the applicant merely reiterated that his life would be in danger if refouled, and he confirmed that the circumstances of his case had already been presented to the Board. He had nothing further to add.
Grounds for judicial review
10. 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).
11. The applicant did not advance any ground for his intended judicial review in Form 86, nor in his supporting affirmation dated 22 May 2020. The applicant merely stated in his affirmation that he wanted to apply for judicial review against the decision of the immigration officer.
Discussion
12. 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).
13. Thus, despite the fact that the applicant did not advance any ground for the intended judicial review, this court will scrutinize the Board’s Decision as aforesaid.
14. In assessing the appeal by the applicant, the Board held an oral hearing on 16 August 2019. The applicant was present and was given the chance to present his case and grounds of appeal to the Board in person. The Board carefully examined his evidence and questioned the applicant for details.
15. As can be seen from the Board’s Decision, the Board gave very full and detailed reasoning in rejecting the applicant’s claims. While the Board accepted that it would be unreasonable to expect the applicant to have remembered and recounted completely and precisely details of events he claimed occurred in difficult circumstances many years ago, it is not unreasonable to expect the applicant to be able to provide, at a minimum, a reasonably detailed, clear, broadly consistent and plausible account of at least the core elements of his claim. However, the Board found the applicant failed substantially to meet that threshold. The Board concluded that not even the centerpiece of the applicant’s claim could be regarded as reliable and that the applicant fabricated his account in order to create a basis for his application for non-refoulement protection.
16. Thus, the Board did deal with the applicant’s alleged danger in the Board’s Decision and concluded that the applicant was not entitled to non-refoulement protection on any of the applicable grounds under the USM.
17. The Board also made findings in relation to state protection and internal relocation despite its adverse findings on the applicant. The Board found from objective country of origin information that although serious problems including endemic corruption and police misconduct still existed in India, overall there was in place an effective and non-discriminatory system and machinery for the protection of its citizens and the prosecution and punishment of offenders. Thus, reasonable state protection was available to the applicant.
18. As to internal relocation, although the Board found that the applicant was not entitled to non-refoulement protection, it nevertheless assessed that the applicant could safely relocate without undue hardship to other places apart from his home area within India. The alleged risk from Kuldeep, even if true, was confined to the applicant’s home area. The applicant was 35 years old when the Board made its decision. He was able-bodied with a reasonable level of education and 14 years of work experience in India. He also had a family support network there, including a brother in Ludhiana. Hence, internal relocation for the applicant was viable.
19. As aforesaid, the finding of facts was solely within the ambit of the Board. This court finds nothing wrong in the way the Board reached its conclusion based on the evidence available to the Board.
20. 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.
21. 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
22. For reasons aforesaid, the Leave Application is dismissed.
Dated the 27thday of May 2025
| |
( Thomas Chan )
for Registrar, High Court |
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
Notes for the applicant:
If leave has been granted, the applicant or his solicitors must:
|
|
|
|
|
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
|
|
Sent/Handed to the applicant/the applicant’s solicitors
on: 27/5/2025
Applicant’s ref. no:
Nil
|
|
Sent/Handed to the putative respondent / the putative respondent’s solicitors / such putative interested parties as may be directed by the Court / the putative interested parties’ solicitors on: 27/5/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 12110/18/6/289/IN2417
Director of Immigration
Putative interested party’s ref. no.: QA T/C 1596/18 (Formerly RBCZ 3001473/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
|
Form CALL-1
|