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

HCAL 135/2020

[2025] HKCFI 1692

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 135 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 Form 86 is amended on the Court’s own motion; and

2.  Leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 13 January 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review of a “decision dated 23.12.2019”.  He named the Director of Immigration (the “DOI”) as the proposed respondent and stated “same as above” in the section for interested party.

2.  From the papers filed for this application, there was a decision by the Torture Claims Appeal Board (the “TCAB”) dated 23 December 2019 (the “TCAB Decision”) which affirmed the decision by the DOI dated 21 December 2018 refusing the Applicant’s non-refoulement protection claim.  I take it that the Applicant is seeking judicial review of the TCAB Decision.

3.  I accordingly amended the Form 86 on my own motion to name the TCAB as the putative respondent and the DOI as a putative interested party.

4.  The Applicant requested for a hearing of this application and he attended the same.  When asked whether he had anything to add he confirmed that he had not.

Background

5.  The Applicant is a national of India. He seeks non-refoulement protection on the basis that he will be harmed or killed by people of opposing political affiliation if he is returned.  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 & Anr (2007) 10 HKCFAR 676).

7.  In his affirmation filed in support of the Form 86, the Applicant only asserted that the TCAB Decision was “unfair and unreasonable”, and did not specify any error of law, procedural unfairness or irrationality of the TCAB Decision.

8.  Looking at the TCAB Decision, the Applicant’s case and evidence were all placed before the TCAB [5-8], including the Applicant’s oral testimony at the hearing before the TCAB [38‑51].  After careful consideration of the same, as well as relevant COI, the TCAB came to the conclusion that the Applicant’s allegations were not made out [52-70].

9.  The TCAB further analysed each of the four applicable grounds under the USM, identifying in each instance the correct legal principles to apply [10-30] and the assessment approach [33-37], and concluded that none was made out [73-78].  Further, the TCAB concluded that internal relocation was available to the Applicant [71].

10.  All in all, I do not see any error of law, procedural unfairness or irrationality in the TCAB Decision, whether as alleged by the Applicant or otherwise, 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