RANDHIR SINGH v. TORTURE CLAIMS APPEAL BOARD

HCAL 2341/2020

[2025] HKCFI 2597

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2341 OF 2020

Application for leave to apply for judicial review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

	consideration of the documents only; or
	consideration of the documents and oral submissions by the applicant or counsel in open court;

1.   The applicant’s application for leave to withdraw the application for leave to apply for judicial review be refused.

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 30 November 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board ("the Board") dated 26 April 2019 (“the Board's Decision”).

2.  The Board found that the applicant’s claims for non-refoulement protection were not made out on BOR 2 Risk[1] under the Unified Screening Mechanism (“the USM”).  Hence, the Board confirmed the decision of the Director of Immigration (“the Director”) dated 21 April 2017.

3.  Previously, the Board made a decision on 6 March 2017 (“the Board’s Previous Decision”) that the applicant failed to establish his claims for non-refoulement protection in respect of the other three applicable grounds under the USM, namely Torture Risk[2], BOR 3 Risk[3] and Persecution Risk[4].  Hence, the Board dismissed the appeal and confirmed the Director’s decision dated 10 July 2015.

4.  Thus, the Board’s Decision, which is the subject of the Leave Application, only dealt with BOR 2 Risk.

5.  The Board’s Decision and the Board’s Previous Decision can be viewed in the following hyperlinks: 

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL002341_2020_files/Earlier_Board's_Decision.pdf

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL002341_2020_files/the_Board's_Decision.pdf

Late application

6.  By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant has to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made.

7.  However, the applicant filed Form 86 only on 30 November 2020, which is more than 19 months after the Board’s Decision (made on 26 April 2019).  The applicants were therefore late for more than 16 months in making the Leave Application, and this court has to consider whether there is any good reason to extend the time for the applicants to make the Leave Application.

8.  As held in AW v Director of Immigration [2016] 2 HKC 393, the criteria for granting an extension of time are:

(i)      the length of the delay;

(ii)     the reason for the delay;

(iii)    the merits of the intended application; and

(iv)    any prejudice to the putative respondent and to public administration.

9.  The applicant did not make any application for extension of time and provided no explanation for the delay in making the Leave Application.  The delay was substantial, and there is no justification for the delay when no explanation was given.  There is also no merits of the intended judicial review as discussed below.  Having considered the above criteria, this court is not prepared to grant any extension of time to the applicant to file the Leave Application, even if an application for extension of time was made. The Leave Application can therefore be dismissed on the ground of being made out of time alone.

10.  However, for the sake of completeness, this court will still examine the merits of the intended judicial review.

The applicant’s case

11.  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 and the Board’s Previous Decision, which can be viewed in the hyperlinks above.

12.  In sum, the applicant claimed for non-refoulement protection because he feared that, if refouled to India, the police would arrest and detain him for the murder of a supporter of the Indian National Congress Party (“INC”).  The applicant claimed that his friend Mandeep committed the killing, but he was accused of committing the murder instead.  He also feared being harmed or killed by INC or the family of the murdered person.  

Withdrawal of the Leave Application

13.  By his latest affirmation dated and filed on 15 January 2025, the applicant informed this court that he wanted to go back to his home country because his issue had been solved.  This court will treat the applicant’s said affirmation as an ex parte application for leave to withdraw the Leave Application.

14.  There is no evidence to show that the applicant made the withdrawal application other than out of his own volition.  With this withdrawal application, it is clear that the applicant no longer wishes to proceed with the Leave Application or any oral hearing for the Leave Application.  It is therefore not necessary for this court to afford him any oral hearing for the Leave Application even though he had requested one before.

15.  The Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 that:-

“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

16.  Thus, it is just not right to leave the action at large by granting leave to withdraw to the applicant.  This court will proceed to determine the merits of the Leave Application.

Grounds for judicial review

17.  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).

18.  In Form 86 and his supporting affirmation dated 30 November 2020, the applicant advanced some grounds for the intended judicial review, which can be summarised as follows:-

(1)  The Board had unlawfully fettered its discretion by refusing the applicant’s appeal on the ground that it did not satisfy the requirement.

(2)  The adjudicator acted in a procedurally unfair manner in dealing with the applicant’s appeal.

(3)  The Board’s decisions to refuse the applicant’s appeal were unreasonable or irrational in the public law sense or were a result of procedural errors or unfairness.

(4)  The Board failed to meet the greater care and duty owed to a self-represented claimant.

(5)  The applicant was not given a fair opportunity to keep forward his submissions in an oral hearing nor was he invited to submit written submissions.

(6)  The Board had significantly relied on the source of news which was not officially recognized or it was simply hearsay.  The Board had also relied on some cases which were fairly outdated considering the dramatic changes.  The lack of credible source of information had resulted in the Board making groundless specification that it was safe for the applicant to return to his country of origin.

Discussion

19.  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).

20.  Thus, it is not open to the applicant to challenge the Board’s finding of facts.  Although this court will scrutinize the Board’s Decision and intervene by way of judicial review for errors of law, procedural unfairness or irrationality, the grounds advanced by the applicant, as summarised above, are all very vague, general and without any particulars or specificity.

21.  As held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”. 

22.  Thus, apart from the ground concerning no oral hearing, none of the other grounds could establish any valid challenge to the Board’s Decision for the lack of particulars or specificity.

23.  In assessing the applicant’s appeal/petition, the Board did not arrange an oral hearing.  However, the Board did give its reasons for not affording the applicant an oral hearing in the Board’s Decision.  As the Board pointed out, an oral hearing is not mandatory.  The appeal could be disposed on paper when the standard of fairness was not compromised.

24.  The Board considered that in view of the Board’s Previous Decision, it could not see that fairness required a hearing or that a hearing would be likely to improve the applicant’s case.  In effect the issue of BOR 2 Risk was raised by the applicant and implicitly decided in the Board’s Previous Decision and nothing had been put forward which might affect that finding.  Thus, the Board concluded that the only sensible course was to decide the appeal under BOR 2 Risk by way of a paper review.

25.  This court finds no flaw in the Board’s decision in not having an oral hearing for the applicant.  On 5 April 2017, the Director did invite the applicant to submit additional facts, if any, which he considered relevant to his claims, including a claim under BOR 2 Risk, but the applicant gave no reply.  The applicant cannot complain that he was not given a fair opportunity to put forward his submissions when he failed to reply.

26.  The Board is right to decide that when there was nothing new for it to take into consideration for BOR 2 Risk, there was no need to afford the applicant any oral hearing.

27.  Moreover, as held in Re Kulwinder Kaur [2022] HKCA 48, the issues under BOR 2 Risk are not separable from those under BOR 3 Risk.  Upon determining that there is no BOR 3 Risk, there is no arguable ground for any BOR 2 Risk (see also AA v Sweden (2017) 64 EHRR 20 and RM v Gerard Paul Muttrie Esq, HCAL 166/2015, 3 March 2016).

28.  In the Board’s Previous Decision, the Board did find that the risks claimed on the other three applicable grounds, including BOR 3 Risk, were not made out.  When there was no additional facts provided by the applicant, BOR 2 Risk could not be established either.

29.  The Board also found in the Board’s Previous Decision that if the Board was wrong in respect of the claimed risks from the INC and the deceased’s family, such risks could be negated by internal relocation.  

30.  The assessment of evidence, country of origin information and risk of harm are primarily within the realm of the Board.  This court finds no errors of the Board in reaching its decision based on all the evidence before it.  

31.  In fact, in view of the applicant’s latest affirmation confirming that he wanted to return to his home country as his issues had been solved, there is absolutely no ground for him to make any non-refoulement claim and there is no prospect of success in the applicant’s intended application for judicial review at all.

32.  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. 

33.  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

34.  For reasons aforesaid, the application for leave to withdraw the Leave Application is refused and the Leave Application is dismissed for being made out of time and also for devoid of merits.

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