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

HCAL 1489/2020

[2025] HKCFI 4494

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1489 of 2020

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 oralsubmissionsby the Applicant in open court;

1.   The Form 86 is amended on the Court’s own motion, substituting “Torture Claims Appeal Board/Non-Refoulement Claims Petition Office” in place of the words “Torture CLAIMS AND APPEAL BOARD”, and naming the Director of Immigration as the Putative Interested Party; and

2.   Leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  The Applicant is a national of India. By a Form 86 dated and filed on 15 July 2020 (“Form 86”), which was accompanied by a supporting Affirmation also dated and filed on 15 July 2020 (“the Affirmation”), the Applicant sought leave to commence a judicial review of a decision of the Torture Claims Appeal Board (“TCAB”) (which was also a decision of the Non-Refoulement Claims Petition Office (“NRCPO”)) made on 3 July 2020 (“the TCAB Decision”)[1]. I will use the abbreviations and definitions from the TCAB Decision unless otherwise specified herein.

2.  The Applicant sought and attended the oral hearing of his application.  He made some submissions, which I will set out below.

3.  I have amended the Form 86 of my own motion to reflect the identity of the proper Putative Respondent, and of the proper Putative Interested Party.

Background

4.  This is set out in the TCAB Decision.  While I will not repeat the contents thereof, in summary and in relation to the assessment of his claim:

(1)  The Applicant claimed non-refoulement relief on the basis that if he were sent back to India, he would be at risk of being harmed or killed by the father and two brothers of his ex-girlfriend, Kaur;

(2)  The claim was assessed on the grounds of Torture Risk[2], BOR 2 Risk[3], BOR 3 Risk[4], and Persecution Risk[5] and was rejected by the Director of Immigration (“Director”) in a decision dated 27 September 2018 (“Director’s Decision”);

(3)  The Applicant hence sought relief from the TCAB/NRCPO by way of an appeal/petition dated 8 October 2018; and

(4)  The TCAB/NRCPO issued, by post, a Notice of Hearing to the Applicant dated 15 January 2020, with the hearing scheduled to take place on 3 April 2020;

(5)  However, the Applicant failed to attend the scheduled hearing.  Hence the TCAB/NRCPO that day sent, by post, a written notice of its intention to determine the appeal in the Applicant’s absence and informing him that he could submit, within 7 days, a written explanation of his failure to attend the hearing together with documentary evidence supporting the explanation; and

(6)  As the TCAB/NRCPO received no written reply, evidence to explain non‑attendance, or evidence to support his claims, it proceeded to determine the petition/appeal in his absence and issued the TCAB Decision on 3 July 2020, in which it found that the Applicant was not entitled to non‑refoulement protection on any of the grounds under the USM, refused the appeal/petition, and confirmed the Director’s Decision.

Legal Principles

5.  An applicant, even one acting in person, is required to identify the grounds of judicial review clearly and succinctly in the Form 86, and to fully and frankly disclose all material facts and potential legal answers (Ho Loy & Another v Director of Environmental Protection, unrep.  HCAL 21/2015, 22 December 2016, Chow J. (as he was then) at §142; Leung Kwok Hung, unrep., HCAL 83/2012, 28 September 2013, Lam J. (as he was then) at §35; Begum Khadija [2018] HKCA 571; Khan Kamran [2020] HKCA 380).

6.  It is trite that the role of the Court in a judicial review is not to provide a further avenue of appeal, and that the Court should not usurp the role of the TCAB/NRCPO which is (and together with the Director are) the primary decision‑makers.  The assessment of evidence, COI materials, and credibility, risk of harm, state protection and viability of internal relocation are primarily within the province of the TCAB/NRCPO and the Director, which are entitled to make evaluations based on the evidence available and to decide the weight to be given to them.  While the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, the 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/NRCPO.  (Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; Nupur Mst v Director of Immigration [2018] HKCA 524; Re Kartini [2019] HKCA 1022; Re Rupinder Singh [2021] HKCA 886).

7.  In order for me to give leave for judicial review, I have to be satisfied that there is an intended ground of review which is reasonably arguable, which is one that enjoys a realistic prospect of success (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676).  As a leave application of this sort is meant to be a filtering process, I am not expected to give elaborate reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23).

Discussion

8.  As the Applicant has not identified or set out any grounds of judicial review in the Form 86 or Affirmation, there is no allegation of any procedural unfairness in relation to, of any error of law in, and/or of any irrationality/failure to meet the enhanced Wednesbury test in, the TCAB Decision.

9.  However, given the seriousness of the issues at hand, I have considered the TCAB Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard and bearing in mind the need for a high standard of fairness.

10.  The TCAB/NRCPO began with the Applicant’s immigration and procedural history, and his claims as advanced to the Director via the NCF and Interview (Paragraphs 1 to 16), followed by its attempts to obtain conduct the hearing and the context which led it to deal with the appeal/petition in the Applicant’s absence (Paragraphs 17 to 19).

11.  The TCAB/NRCPO then assessed the Applicant’s claims and evidence, having regard to relevant principles, and found that in the circumstances it did not have sufficient evidence to be satisfied of the facts of the events and claims raised by the Applicant.  It therefore did not accept them, and that his evidence about what occurred to him in India was based on his personal or actual experience.  In particular, it did not accept that he was subjected to abuse, threats, harassment, intimidation or violence from, by or on behalf of members of the family of a young woman he was in a romantic relationship with, that he was forced to leave his home in India for the reasons claimed or that he was threatened with harm by his ex-girlfriend’s family or any other person because of that relationship or any related grievance, or that the Appellant was a person of adverse interest to any person or group, including members of his ex-girlfriend’s family in his home area at the time he left India (Paragraphs 20 to 32).

12.  The decision-maker then went on to consider each of the relevant types of risk and decided that none of them had been established.  He did so with regard to relevant principles, his earlier finding that the Applicant’s claims were not credible, and hence had regard to the lack of risk of harm.  Accordingly, the Applicant was not entitled to non-refoulement protection on any of the grounds under the USM, the appeal/petition was refused, and the Director’s Decision was confirmed (Paragraphs 33 to 56).

13.  I do not, from my examination and scrutiny, see that the Applicant has any reasonably arguable case that there was procedural unfairness (bearing in mind the need for a high standard of fairness), an error of law, and/or irrationality/failure to meet the enhanced Wednesbury test that is sufficient to vitiate the TCAB Decision.  This is especially so as to the assessment, reasoning, and findings regarding the evidence and risk of harm, which are matters primarily within the province of the decision-making body.  Nor is there any public law basis to vitiate the decision-maker’s conclusions regarding Torture Risk, Persecution Risk, BOR 3 Risk, and BOR 2 Risk.

14.  At the oral hearing before me, the Applicant submitted that he was married and his family was here, and that he was not safe in India.  I reject these bare allegations, and in any event do not see how they are relevant to or assist his application for leave (i) Given the findings in and my analysis of the TCAB Decision; (ii) Given that the role of the Court in a judicial review is not to provide a further avenue of appeal, and judicial review is not an avenue for revisiting the assessment in the hope that the court may consider the matter afresh even in the absence of any legal error (Lakhwinder Singh, supra); and (iii) As I do not see or accept that his family circumstances in Hong Kong are valid grounds or a relevant consideration in relation to his own non-refoulement claim (Oguzie Ikechukwu Charles [2022] HKCA 135 at §20) .

15.  There is hence no basis for the court to intervene by way of judicial review, and I am not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success.

Conclusion

16.  In the circumstances, I have ordered that the Form 86 be amended as described above, and that the application for leave to apply for judicial review 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