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

HCAL 3825/2019

[2025] HKCFI 1541

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3825 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

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

Leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 23 December 2019 (the “Form 86”), the Applicant applied for leave to apply for judicial review of the decision by the Torture Claims Appeal Board (the “TCAB”) dated 20 December 2019 the (the “TCAB Decision”) affirming the decision by the Director of Immigration (the “DOI”) dated 30 September 2019 refusing his non-refoulement protection claim. He named the TCAB as the proposed respondent and the Director of Immigration as an interested party.

2.  The Applicant requested for a hearing of this application and he attended the same. When asked if he had anything to say on top of the documents filed, he confirmed that there was not.

Background

3.  The Applicant is a national of India. He seeks non-refoulement protection on the basis that he will be harmed by his girlfriend’s brother in India if he is returned. His personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be assessed through a hyperlink[1], and I shall not repeat the same herein.

Discussion

4.  In a judicial review, this court does not provide a further avenue of appeal. Though in non-refoulement case an enhanced standard in scrutinizing the decision of the TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI are the primary decision-makers. This court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the TCAB (Nupur Mst v Director of Immigration [2018] HKCA 524, [14(1)]). There must be a reasonably arguable claim with a realistic prospect of success before leave for judicial review will be granted (Peter Po Fun Chan v Winnie Cheung & Anr (2007) 10 HKCFAR 676).

5.  In his affirmation filed in support of the Form 86, the Applicant did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision. In his Form 86, the Applicant did attach a set of grounds on which relief is sought, however the complaints therein were but generic criticisms such as weight to be attached to evidence or mere assertions that different conclusions should have been reached.

6.  Looking at the TCAB Decision, all the available evidence was placed before the TCAB [2-4]. The TCAB carefully considered the same in the context of the four applicable grounds under the USM, applying in each instance the correct legal principles, and concluded that none was made out [5-30].

7.  Further, the TCAB also came to the conclusion that the Applicant’s allegations were not accepted [31-35] and in any event internal relocation was available to him [18, 24, 30].

8.  All in all, I do not see any error of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.

Conclusion

9.  For the above reasons, I am not satisfied that this court should intervene by way of judicial review. I therefore dismiss the application.

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