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

HCAL 885/2020

[2025] HKCFI 3016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 885 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.  Form 86 be amended, adding the Director of Immigration as the Putative Interested Party.

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

Observations for the Applicant:

Introduction

1.  By Form 86 (“Form 86”) filed on 12 May 2020, the Applicant seeks leave to apply for judicial review (“the Leave Application”) of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)’s decision dated 16 April 2020 (“the Board’s Decision”) confirming the Director of Immigration’s decision dated 21 September 2018 (“the Director’s Decision”), which rejected his non-refoulement claim on all applicable grounds under the Unified Screening Mechanism (USM).

2.  I have amended Form 86 on my own motion, correctly naming the Director as the proposed interested party.

Background

3.  It is unnecessary to restate the facts of the present case. The Applicant’s personal background, his case and claim, including the incidents alleged to show that he would be harmed or killed in India by his uncles owing to a land dispute, and the immigration and procedural history, etc. were set out in the Board’s Decision in details. For completeness’ sake, reference can be made to the Board’s Decision, the hyperlink to which is included below[1]. Unless otherwise specified, the Board’s abbreviations and descriptions are adopted herein.

Discussion

4.  To begin with, it is essential to remind myself of the enhanced standard that should be adopted when evaluating the Board’s Decision because of the seriousness of the issues involved. (see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163).

5.  I am satisfied that the Board correctly applied the law and adhered to a very high standard of fairness, after rigorously examining and anxiously scrutinizing its decision. The following factual findings were made by the Board regarding the Applicant’s non‑refoulement claim, following the hearing. The Board rejected the Applicant’s allegations and concluded that his claim lacked merit with respect to the asserted risks of harm, the unavailability of state protection, and the non-viability of internal relocation, while taking into account all relevant personal circumstances and the country of origin information, etc. (see Satnam Singh v Director of Immigration & Another [2019] HKCA 433 at §11.1):

(1)  The Board found that the number and nature of the inconsistencies in the Applicant’s evidence were “sufficiently serious” to undermine his credibility[2].

(2)  The Board attached “very little weight” to the Applicant’s evidence and concluded that there was no risk of torture if he were to be removed. There was also no evidence that there was personal and real risk of the Applicant being subjected to a BOR 2 risk upon his return. It was not accepted that the Applicant would face a genuine and substantial risk of being subjected to torture or CIDTP under BOR 3 if refouled. The Applicant’s case did not warrant non-refoulement protection on the ground of persecution risk[3].

(3)  Furthermore, the Board found that there was no evidence indicating that the State had acquiesced in the uncles’ treatment of the Applicant or failed to provide reasonable protection. It further found no evidence that the uncles were public officials or were acting in any official capacity, nor was there any involvement of public officials in the alleged incidents[4].

(4)  It would not be unduly harsh for the Applicant to relocate to other major urban areas of the country[5].

6.  The Applicant is unable to identify any valid ground for his intended judicial review of the Board’s Decision (see Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015 (22 December 2016) at §142). No errors of law, procedural unfairness, or irrationality has been demonstrated. Simple “dissatisfaction” with the outcome is not a valid basis for challenge. It is not the Court’s role to conduct a fresh assessment of the case. The Board was the primary decision‑maker, responsible for evaluating the Applicant’s claim and determining the appropriate weight to be given to the evidence. The Court should not usurp such role unless there is irrationality or other public law ground (see Re Zunariyah [2018] HKCA 14, Re Qadir Sher [2018] HKCA 160, Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152, Re Rizwan alias Rizwan Gulistan [2018] HKCA 162, and Re Masoom Parvez [2018] HKCA 163).

Conclusion

7.  As the Applicant’s intended application for judicial review is plainly not reasonably arguable with any realistic prospects of success (see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676), no leave should be granted.

8.  I accordingly make an order that Form 86 be amended as described above and the Leave Application 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