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

HCAL 3652/2019

[2025] HKCFI 2033

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3652 of 2019

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.   Form 86 be amended, adding the Director of Immigration as the Putative Interested Party.

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

Observations for the Applicant:

Introduction

1.  By Form 86 dated 9 December 2019, the Applicant applies for leave to apply for judicial review (“the Leave Application”) of the decision of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) dated 25 November 2019 (“the Board’s Decision”) confirming the decision of the Director of Immigration (“the Director”) dated 19 September 2018 (“the Director’s Decision”), which rejected his non-refoulement claim on applicable grounds other than torture risk (“the Grounds”).

2.  On my own motion, I have amended Form 86, adding the Director as the proposed interested party.

Background

3.  The material facts of this case, including the Applicant’s personal background, the incidents alleged to show that he would be harmed or killed by his uncles and cousins owing to a land dispute, and the immigration and procedural history, etc. have been set out comprehensively in the Board’s Decision.  It is not necessary to repeat them all over again.  For completeness’ sake, reference can be made to the Board’s Decision, the hyperlink to which is included below[1]. Unless otherwise specified, the Board’s abbreviations and descriptions are adopted herein.

Discussion

4.  First of all, in view of the seriousness of the issues at hand, I have considered the Board’s Decision with rigorous examination and anxious scrutiny, applying an enhanced standard as required by law (see Nupur Mst v Director of Immigration[2018] HKCA 524 at §14).  I am satisfied that the Board correctly set out the burden and standard of proof, the law and key legal principles, and observed a very high standard of fairness.

5.  After assessing the credibility and reliability of the Applicant’s case and evidence, the Board held that his claim for non-refoulement protection on the grounds of BOR 3 risk, persecution risk and BOR 2 risk was not substantiated:

(1)  There were no substantial grounds to believe that the Applicant faced a real risk of being subjected to CIDTP if he returned to India (see §§36-49 of the Board’s Decision).

(2)  The Applicant did not have a well-founded fear of persecution in India (see §§50- 58 of the Board’s Decision).

(3)  There were no grounds to believe that the Applicant faced a risk of being arbitrarily deprived of his life (see §§59-60 of the Board’s Decision).

6.  I am not satisfied that the Applicant’s intended challenge of the Board’s Decision, on any of the grounds below, is reasonably arguable with any realistic prospects of success (see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676):

(1)  “Notice of Decision by the Director of Immigration and Decision made by the Non­ refoulement Claims petition office has all the details of my claim. I believe that the Director of Immigration and the Adjudicator of Appeal Board reached the decision wrongly in assessing my Non-refoulement Claims.” (Ground 1)

(2)  “I believe the decisions were not reasonable and fair (as required by the Wednesbury test). Indeed, the right to life is protected under Article 28 of the Basic Law and Article 2 of the Bill of Rights. In practice, the right to life is mainly protected by the criminal law and it must be protected from extra‑judicial killings that I may face if I am deported back to my country.” (Ground 2)

(3)  “From the Director’s Decision, it is evident that the director has failed to appreciate or give the proper importance or weightage to the presence of state Acquiescence in my case. This has indeed led to an unfair outcome of rejecting my non‑refoulement claim. I was tortured at the Behest and the state law enforcement agencies as well as those in the high ups of political circles. It is submitted that the state would be rendered liable to me by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence.” (Ground 3)

(4)  “The Adjudicator acted unreasonable and was procedurally unfair by placing too much reliance on Country of Origin Information but failed to take my personal background and experience into account. Further, I submit that although the Director had listed relevant COIs which support the aversions that the police in my country would not be able to protect. The Director failed to consider or give enough weightage to that evidence and ruled otherwise.” (Ground 4)

(5)  “I submit that the Director has tailed to take such argument into account or that the Director has failed to give enough weight to such argument before reaching the Decision. This was a clean case of unfair attitude shown by the Director which in itself is enough to render his Decision void. In Fact, the corruption and incompetency of the administration in my country is still a very serious problem. Various human rights organization has complied reports on the matter which stated testament to my assertions.” (Ground 5)

(6)  “Further, the director has failed to attain the high standard of fairness required by the Wednesbury test in the decision with the arguments put forward above.  As such, the decision of the director should be considered unreasonable in the scope of Public Law.” (Ground 6)

(7)  “The Adjudicator was procedurally improper and/or unfair when assessing whether to accept or not to accept explanations provided by me, and unreasonably requires me to response [sic] to questions that I was not in a position to offer any response.” (Ground 7)

(8)  “The Adjudicator failed to take into account the nexus of political parties and official corruption which exists in my country, making the persecution effectively persecution by the State.” (Ground 8)

(9)  “The Adjudicator made a ruling to dismiss my appeal/petition in the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office based on findings which the Adjudicator ought to allow the appeal/petition, and thus the Decision was irrational.” (Ground 9)

7.  First of all, what the Applicant seems to challenge is the Board’s Decision, not the Director’s Decision.  Therefore, the parts of Grounds 1 and 4, as well as Grounds 3, 5 and 6, which concern the Director and/or the Director’s Decision, must be rejected.

8.  For the remaining parts of Grounds 1 and 4, as well as Grounds 2, 7 to 9, it is clear that they are directed, in real terms, against the Board’s assessment of the evidence, COI materials, risk of harm, state protection and viability of internal relocation, etc.  None of them identifies any error of law, procedural unfairness, or irrationality in the Board’s Decision.  It is insufficient for the Applicant to make general assertions that the Board was “not reasonable and fair”, or “procedurally improper and/or unfair”, hoping that the Court would reopen the Board’s findings and decide his case afresh.  These matters were primarily within the province of the Board.  It is well-established that the Board was entitled to evaluate the evidence available and determine the individual weight to be assigned to them.  The role of the Court in a judicial review is not to provide the Applicant a further avenue of appeal (see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524, etc.)

Conclusion

9.  For these reasons, I make an order that Form 86 be amended as described above and the Leave Application 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