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

HCAL 1083/2020

[2025] HKCFI 3199

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1083 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 oral submissions by the Applicant in open court;

1.  The Applicant’s Form 86 be amended to name the DI as putative interested party; and

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

Observations for the Applicant:

1.  By a Form 86 filed on 3 June 2020 (“Form 86”), the Applicant sought leave for judicial review of the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“TCAB”) made on 29 May 2020 (“the TCAB Decision”). A copy of the TCAB Decision can be viewed by the following hyperlink[1].

2.  The TCAB Decision was made pursuant to a petition/appeal from a decision of the Director of Immigration (“DI”) dated 10 May 2018. The Applicant named the TCAB as both the putative respondent and the putative interested party in the Form 86. I amended the Form 86 on my own motion to name the DI instead as the putative interested party to this application.

3.  The Applicant has failed to identify any alleged errors of law, irrationality or procedural unfairness on the part of the TCAB in reaching the TCAB Decision to make good his challenge, either in the Form 86 or the supporting affirmation. In the oral hearing before me, he said he has nothing to add in support of the leave application and would respect the decision reached by this Court.

4.  The Applicant is a national of India. His claim was based on a dispute between his father and another individual over the land inherited from the Applicant’s grandfather. The TCAB conducted a hearing to give the Applicant a chance to make representations. After an intense factual inquiry into the Applicant’s case, and bearing in mind the guidelines for assessing credibility in non-refoulement cases, the TCAB came to the view that the Applicant’s assertions could not be relied upon. The TCAB did not accept the individual having a land dispute with the Applicant’s father would harm/kill the Applicant. The TCAB did not accept that the Indian police would not provide the Applicant with any protection because of that individual’s connection to a political party. The TCAB also found that the Applicant could safety live in other places in India.

5.  I have reviewed the TCAB Decision vigorously. In my judgment, the TCAB Decision was supported by factual findings and the TCAB had conducted an anxious scrutiny of the available evidence and information. 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. In the absence of any errors of law, procedural unfairness or irrationality, the Court would not reopen TCAB’s 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).

6.  The leave application to apply for judicial review is thus 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