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

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of documents only;       or
	consideration of documents and Applicant being absent in open court;

Leave to apply for Judicial Review of the Board’s 2^nd Decision be refused.

Observations for the Applicant:

THE APPLICATION 

1.  The applicant is a national of India. He is an illegal immigrant, having entered Hong Kong as a visitor and overstayed. He lodged a non-refoulement claim with the Director of Immigration (“the Director”) on the basis that, if refouled, he will be harmed or killed by the villagers of the locality where he lived because he had converted from Sikhism to Christianity. Details of his story are found in the Board’s 1^st Decision as described below. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001254_2020_files/1st_Board's_Decision.pdf. His claim relied on the Torture risk, BOR 3 risk and Persecution risk. See the details below.

2.  By Notice of Decision dated 16 September 2014 (“the Director’s 1^st Decision”), the Director rejected his claim for the reason that it was unsubstantiated.

3.  He appealed the Director’s 1^st Decision to the Torture Claims Appeal Board (“the Board”). By Decision dated 20 December 2016 (“the Board’s 1^st Decision”), the Board dismissed his appeal. He did not apply for judicial review of the Board’s 1^st Decision, which has become final under Section 23(4) of Schedule 1A of the Immigration Ordinance (“the Ordinance”).

4.  Upon invitation from the Director, the applicant lodged his claim on BOR 2 risk. By Notice of Further Decision dated 29 March 2017 (“the Director’s 2^nd Decision”), the Director refused his claim on BOR 2 risk for the reason that it was unsubstantiated.

5.  He appealed to the Board against the Director’s 2^nd Decision. By Decision dated 5 June 2020 (“the Board’s 2^nd Decision”), the Board dismissed his appeal.

6.  The applicant applies for leave to apply for judicial review of the Board’s 2^nd Decision.

7.  Since the facts of the Board’s 2^nd Decision are the same as the Board’s 1^st Decision, I shall take into consideration of the Board’s 1^st Decision for the assessment of the Board’s 2^nd Decision under this application.

8.  The applicant asked for a hearing. However, he was absent at the hearing on 22 September 2025. I shall deal with his application on the papers.

9.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The Director’s Decisions

10.  The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

c.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

11.  By the Director’s 1^st Decision, the Director dismissed the applicant’s claim because it was unsubstantiated. Besides, state protection is available and internal relocation is viable, which will mitigate or neutralize the applicable risks.

12.  The Director further consider the applicant’s claim in relation to risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”).

13.  By the Director’s 2^nd Decision, the Director dismissed his claim on BOR 2 claim for the reason that his claim on BOR 2 risk was unsubstantiated.  See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001254_2020_files/2nd_Board's_Decision.pdf.

The Board’s Decisions

14.  The applicant appealed the Director’s 1^st Decision to the Board. On 22 October 2015, the Board conducted an oral hearing for his appeal.

15.  Having considered the evidence, the Board found the facts below.

(1)  The applicant’s evidence was unreliable and lacking in credibility. It rejected his evidence on the facts of his claim and it did not accept the applicant had changed his religion from Sikh to Christianity. [24]&[35]

(2)  State protection will be available to him even if his evidence were accepted. [31]

16.  For the reasons above, the Board by the Board’s 1^st Decision, dismissed his appeal and affirmed the Director’s 1^st Decision.  The applicant has not applied for judicial review of the Board’s 1^st Decision.

Application for leave to apply for judicial review of the Board’s Decision

17.  The Applicant appealed the Director’s 2^nd Decision to the Board.  The Board considered his appeal on paper.  By the Board’s 2^nd Decision, the Board dismissed his appeal because his claim under BOR2 risk was unsubstantiated.

18.  The applicant has filed Form 86 dated 22 June 2020 for leave to apply for judicial review of the Board’s 2^nd Decision.

19.  In his affirmation in support of his application, the applicant did not raise any specific ground to challenge the Board’s 1^st Decision or the Board’s 2^nd Decision.

DISCUSSION

20.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

21.  The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

22.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). 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 Board.”

23.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s 1^st Decision or the Board’s 2^nd Decision.

DISPOSITION

24.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s 2^nd Decision. Accordingly, I dismiss his 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