MATHARU HARDEEP 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 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 10 August 2021 (“Form 86”), the Applicant sought leave for judicial review of the decision of the Torture Claims Appeal Board (“TCAB”) and the Immigration Department made on 20 April 2021.  From a copy of the decision sought to be reviewed exhibited to the supporting affirmation, which can be viewed by the following hyperlink[1], it is plain that the decision dated 20 April 2021 was just made by the TCAB with its member also sitting as an adjudicator of the Non-refoulement Claims Petition Office (“NRCPO”).  The TCAB/NRCPO’s decision was made pursuant to a petition/appeal from a decision of the Director of Immigration (“DI”) dated 11 October 2018.  In the circumstances, paragraph 1 of the above orders is made to properly reflect the status of the parties to the proceedings.

2.  The Applicant is an Indian national.  His non-refoulement claim was based on an alleged risk of being harmed by the family members of his girlfriend who opposed to the relationship.  After an oral hearing taking two days, the TCAB/NRCPO was not convinced that the Applicant would be at risk of being harmed.  The Applicant was found to be a poor witness; he was said to recall very little about his claim and there were material discrepancies between his written claim form and oral evidence.  As the centrepiece of his story was not accepted, none of the applicable ground was made out.

3.  The only ground of judicial review put forward by the Applicant was that the TCAB/NRCPO had disregarded his dangerous situation in India; he had nothing to add to his argument in 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).

4.  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 explained that it was because the TCAB/NRCPO decision was made during the pandemic.  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. 

5.  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