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

HCAL 1873/2020

[2025] HKCFI 4689

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1873 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, the DOI as a putative interested party and the TCAB Decision dated 14 September 2020 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 21 September 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review of a decision by an adjudicator dated 14 September 2020. He named the Torture Claims Appeal Board (the “TCAB”) and the Director of Immigration (the “DOI”) as proposed respondents, and inserted an address at the Immigration Tower in the interested party section.

2.  From the case record, there was a decision by named adjudicator of the TCAB dated 14 September 2020 (the “TCAB Decision”), which affirmed a decision by the DOI dated 27 November 2018 in refusing the Applicant’s non-refoulement protection claim.

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

4.  The Applicant requested for a hearing and attended the same. When asked if 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 if he was returned, he would be harmed or killed by a police officer who believed that his son was killed by the Applicant as a result of a car accident. 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, the Applicant did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision.

8.  Looking at the TCAB Decision, the TCAB took into consideration the Applicant’s case and evidence, and all the materials placed before it [8-16], including the Applicant’s testimony at the hearing before it [17-20, 32-] and relevant COI [30]. After thoroughly analysing the same and assessing the Applicant’s credibility, the TCAB came to the finding that the Applicant’s allegations were not made out [34-45].

9.  The TCAB bore in mind the correct principles in respect of each of the four applicable grounds under the USM [21-29], and concluded that none was made out [50-57].

10.  The TCAB further concluded that internal relocation was available to the Applicant [46-49].

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

Conclusion

12.  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