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

HCAL 678/2020

[2025] HKCFI 3625

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 678 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 the Applicant being absent in open court;

1.  The Form 86 be amended on the Court’s own motion, naming only the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office as the Putative Respondent, naming only the Director of Immigration as the Putative Interested Party, and in relation to the Judgment, order, decision or other proceeding in respect of which relief is sought, adding the words “Non-Refoulement Claims Petition Office” before the word “Date”; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  The Applicant is a national of India. By a Form 86 dated and filed on 17 April 2020 (“Form 86”), the Applicant sought leave to commence a judicial review regarding a decision of the Torture Claims Appeal Board (“TCAB”)/Non-Refoulement Claims Petition Office (“NRCPO”) dated 24 March 2020 (“TCAB Decision”) [1]. I will use the abbreviations and definitions from the TCAB Decision unless otherwise specified herein.

2.  The Applicant sought an oral hearing of his application, but did not appear at such. I have hence dealt with his application on the papers.

3.  I have therefore amended the Form 86 of my own motion to reflect the identity of the proper putative respondent and interested party, and the decision in respect of which relief is sought.

Background

4.  The salient portions of the Applicant’s background and case as to the incidents underlying his claim for non-refoulement relief, and the immigration and procedural history leading up to the TCAB Decision, are set out in the latter decision. I will not repeat them but, in essence:

a.  The Applicant claimed non-refoulement protection on the grounds of Torture Risk[2], BOR 2 Risk[3], BOR 3 Risk[4], and Persecution Risk[5]. The basis of the Applicant’s non-refoulement claim was that he would be harmed or killed by his uncle, Gurdit Singh (“Gurdit”);

b.  The claim was rejected by the Director of Immigration (“Director”) in a decision dated 8 December 2017 (“Director’s Decision”); and

c.  The Applicant appealed/petitioned to the TCAB/NRCPO, which held a hearing on 15 November 2019 (“TCAB Hearing”).

5.  The TCAB Decision was subsequently handed down, in which the TCAB/NRCPO rejected his claim for non-refoulement on all of the claimed bases and confirmed the Director’s Decision.

Legal Principles

6.  An applicant, even one acting in person, is required to identify the grounds of judicial review clearly and succinctly in the Form 86, and to fully and frankly disclose all material facts and potential legal answers (Ho Loy & Another v Director of Environmental Protection, unrep. HCAL 21/2015, 22 December 2016, Chow J. (as he was then) at §142; Leung Kwok Hung, unrep., HCAL 83/2012, 28 September 2013, Lam J. (as he was then) at §35; Begum Khadija [2018] HKCA 571; Khan Kamran [2020] HKCA 380).

7.  It is trite that the role of the Court in a judicial review is not to provide a further avenue of appeal, and that the Court should not usurp the role of the TCAB/NRCPO which is (and together with the Director are) the primary decision‑makers. The assessment of evidence, COI materials, and credibility, risk of harm, state protection and viability of internal relocation are primarily within the province of the TCAB/NRCPO and the Director, which are entitled to make evaluations based on the evidence available and to decide the weight to be given to them. While the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, 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 TCAB/NRCPO. (Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; Nupur Mst v Director of Immigration [2018] HKCA 524; Re Kartini [2019] HKCA 1022; Re Rupinder Singh [2021] HKCA 886).

8.  In order for me to give leave for judicial review, I have to be satisfied that there is an intended ground of review which is reasonably arguable, which is one that enjoys a realistic prospect of success (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676). As a leave application of this sort is meant to be a filtering process, I am not expected to give elaborate reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23).

Discussion

9.  No grounds for judicial review are set out in the Form 86 or the Affirmation. The body of the latter merely states that he is “not satisfied with the decision given by [TCAB]. I cant (sic) go back to my country at this moment because my life is not save (sic) in my own country. Please help me to stay here until my problem will be solved.” I will deal with such below.

10.  As the Applicant has not identified or set out any grounds of judicial review, there is no allegation of any procedural unfairness in relation to, of any error of law in, and/or of any irrationality/failure to meet the enhanced Wednesbury test in, the TCAB Decision. However, given the seriousness of the issues at hand, I have considered the TCAB Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard and bearing in mind the need for a high standard of fairness.

11.  The TCAB Decision set out the Applicant’s procedural and immigration history, his fear of being harmed or killed by Gurdit, and the decision-maker’s approach to materials, COI, and function (Paragraphs 1 to 12), followed by the overall conduct of the TCAB Hearing including that the Applicant had the assistance of an interpreter and the explanations, reminders, notifications, and opportunities given by the TCAB/NRCPO (Paragraph 13). It then outlined the contents of and principles relating to the 4 relevant grounds of risk (Paragraphs 14 to 26).

12.  The TCAB/NRCPO then moved on to the Applicant’s case as set out in the NCF and Interview (Paragraphs 27 to 46), and to the evidence given at the TCAB Hearing (Paragraphs 47 to 52). It then set out its analysis, reasons, and conclusion as to why the Applicant had not made out his case in respect of any of the 4 bases of risk, that hence the Applicant was not entitled to non-refoulement relief, and the Director’s Decision was confirmed (Paragraphs 53 to 61), including the following in particular:

a.  None of the 4 bases of risk were established having regard to the principles and the evidence (including COI) before it as relevant to topics such as the extent, purpose, and severity of past experiences, state protection, and state acquiescence; and

b.  As to internal relocation, even if there were was a risk of harm as claimed, on the facts such was confined to the local area where he and his family had lived and he could hence relocate internally without undue hardship.

13.  I do not, from my examination and scrutiny, see that the Applicant has any reasonably arguable case that there was procedural unfairness (bearing in mind the need for a high standard of fairness), an error of law, and/or irrationality/failure to meet the enhanced Wednesbury test that vitiates the TCAB Decision. This is especially so as to the assessment, reasoning, and findings regarding the risk of harm, and consequently Torture Risk, Persecution Risk, BOR 3 Risk, and BOR 2 Risk[6], which are all matters primarily within the province of the decision-making body.

14.  I do not see that the allegations in his Affirmation are relevant to the issues before me or assist his application for leave. After all, judicial review is not a further avenue of appeal or for revisiting the assessment in the hope that the court may consider the matter afresh absent any legal error (see the authorities cited in Paragraph 7 above). Moreover, given the vague nature of the allegation I do not see that the Applicant is seeking to rely on, or has established that he is seeking to rely on, matters that arose after the TCAB Hearing. The first condition in Ladd v Marshall [1954] 1 WLR 1489 is hence not satisfied. I also do not see that the third condition is satisfied taking into account given the extreme vagueness of the allegation as opposed to the findings made by the TCAB/NRCPO, in particular those relating to risk of harm. I hence reject the allegations as being inadmissible and irrelevant.

15.  There is hence no basis for the court to intervene by way of judicial review, and I am not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success.

Conclusion

16.  In the circumstances I have ordered that the application for leave to apply for judicial review be dismissed and made the other orders above.

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