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

HCAL 1795/2020

[2025] HKCFI 4459

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1795 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 only the TCAB as the putative respondent, only the DOI as a putative interested party and the TCAB Decision as the decision sought to be reviewed; and

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

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 9 September 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review of a decision dated 19 August 2020. He named the Immigration Department and the Torture Claims Appeal Board (the “TCAB”) as proposed respondents as well as interested parties.

2.  The case record shows that the Applicant’s non-refoulement protection claim was firstly refused by the Director of Immigration (the “DOI”) by a decision dated 26 November 2018. Upon appeal to the TCAB, the TCAB by its decision dated 19 August 2020 affirmed the decision by the DOI (the “TCAB Decision”).

3.  I take it that the Applicant is seeking judicial review of the TCAB Decision and amended the Form 86 on my own motion to name only the TCAB as the putative respondent and only the DOI as a putative interested party.

4.  The Applicant requested for an oral hearing and attended the same. When asked if he had anything to add apart from the documents filed, he confirmed that he had not.

Background

5.  The Applicant is a national of India. He seeks non-refoulement protection on the basis that a person and “his people” of opposing political affiliation would harm or even kill him if he was returned to India. 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

6.  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 & Anor (2007) 10 HKCFAR 676).

7.  In his affirmation filed in support of this application, apart from stating that he was not satisfied with the decision by the “immigration” and reiterating the alleged danger to his life if he was returned, the Applicant did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision (or the DOI’s decision for that matter).

8.  Looking at the TCAB Decision, the TCAB bore in mind the correct principles regarding the nature of the appeal, the burden and standard of proof and assessment approach [5, 12-22, 26-30, 33-35], considered all the materials and evidence before it [7-11], and after careful analysis of the materials and evidence came to the factual findings that the Applicant’s allegations were not made out [23-25, 31-32, 36-41].

9.  The TCAB then proceed to analyse each of the four applicable grounds under the USM, applying in each case the correct principles, and concluded that none of them was made out [42‑89]. In so doing, the TCAB also found that state protection appeared to be available [54‑60] and that internal relocation was also available [81-89].

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

Conclusion

11.  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