JAGDEEP 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;

1.  Form 86 be amended as follows:- (1) the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office be named as the only Putative Respondent; (2) the Director of Immigration be named as the Putative Interested Party; (3) the date of the decision in respect of which relief is sought be amended to 20 November 2020.

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

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 1 December 2020 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against an alleged decision dated 16 November 2020.

2.  The Court is not aware of any decision issued by the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office (the “Board”) on 16 November 2020.  There was a decision issued by the Director of Immigration (the “Director”) dated 16 November 2018.  That decision had been superseded by the Board’s decision dated 20 November 2020 (the “Board’s Decision”).  The Director’s decision is not susceptible to judicial review once an appeal to the Board had been pursued (see Re: Moshsin Ali [2018] HKCA 549, at §§31-45).  Accordingly, in so far as the Applicant seeks leave to apply for judicial review in relation to the Director’s decision, the application fails in limine and is hereby dismissed.  In the supporting Affirmation, the Applicant stated that he was not satisfied with the Board’s Decision, and had exhibited the Board’s Decision to the affirmation. Accordingly, it is likely that the date stated on the Form was a typo and the true intention of the Applicant is to seek leave for judicial review against the Board’s Direction.  I therefore amend the date of the decision stated on the Form on the Court’s own motion.

3.  In the Form, the Applicant named both the Board and the Director as the proposed respondents.  The Applicant further named the Board as the proposed interested party.  As it is trite that the Board should be the proposed respondent and the Director should be the proposed interested party in an application of this sort, I also make an order to amend the Form on the court’s own motion in this regard.

4.  The Applicant requested an oral hearing for the application.  The hearing took place on 1 September 2025.  Notice of hearing was issued to the Applicant in advance at the address provided by the Applicant on the Form. Attempts were also made to contact and remind the Applicant of the hearing by phone (at the numbers provided by the Applicant on the Administrative Form and on Form No. 8) on 28 and 29 August 2025 but in vain. The Applicant did not attend the hearing.  As proper notice had been given to the Applicant at the address provided by him, and attempts had also been made to remind the Applicant of the hearing at the numbers he provided, I consider it appropriate to proceed with the Leave Application in the absence of the Applicant.

Background

5.  The Applicant’s background, the basis of his claim and the arguments he advanced had been set out in detail in the Board’s Decision, and it is not necessary for me to repeat the same here.  The hyperlink to the Board’s Decision is included below[1] for reference.

Discussion

6.  The applicable legal principles relating to application of this sort are well established.  The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases, the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence, country of origin information (COI) materials, 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, procedural unfairness or irrationality in the decision of the Board.  (See Nupur Mst v Director of Immigration [2018] HKCA 524, at §14)

7.  In the Form, the Applicant did not provide any grounds in support of the Leave Application.  In the supporting Affirmation, the Applicant simply stated that he is not satisfied with the Board’s Decision.

8.  I have considered the Board’s Decision in detail.  I do not find any error of law, procedural unfairness or irrationality.  Neither has the Applicant been able to demonstrate any of the same.  There is nothing to indicate that the Board had failed to take into account any relevant matters. The Board’s Decision was comprehensive with adequate reasons provided.  The Board was entitled to find the Applicant’s evidence unconvincing given the discrepancy involved (§§61 & 65 of the Board’s Decision).  The Board was entitled to reject the Applicant’s claims based on its evaluation of the evidence and the reasoning provided (§§57-82 of the Board’s Decision).  I do not see any errors in this regard.  The Board’s Decision satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational.  I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success.  Accordingly, I refuse to grant leave for judicial review.

9.  Leave application of this sort is meant to be a filtering process and I am not expected to give elaborated reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23).  Suffice for me to state that in reaching the decision, I have considered all the relevant documents before me.    

Conclusion

10.  On 14 October 2025, the Court received a letter from the Immigration Department.  In the said letter, the Immigration Department indicated that the Applicant had applied to withdraw the Leave Application on 10 October 2025.  As such, removal proceedings of the Applicant would be resumed as soon as practicable.  On 22 October 2025, the Court received a letter from the Applicant.  In the letter, the Applicant confirmed that he wanted to go back to India and “close” the case (i.e. the Leave Application).

11.  In the light of the reasons provided above, I would have dismissed the Leave Application in any event even if the Applicant has not applied to withdraw the Leave Application.  In the premises, I make an order that the Form 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