GILL AMRITPAL SINGH v. TORTURE CLAIMS APPEAL BOARD

HCAL 2109/2020

[2026] HKCFI 1633

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2109 OF 2020

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

1.   On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, and the name of the putative interested party be amended to “Director of Immigration”.

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

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated and filed on 21 October 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 9 October 2020 (“the Board’s Decision”).  The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL002109_2020_files/the_Board's_Decision.pdf

2.  The Board found that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”).  Hence, the Board affirmed the decision of the Director of Immigration (“the Director”) dated 14 January 2019, which rejected the applicant’s non-refoulement claim.

Amendments

3.  The applicant named the Board and Immigration Department as both the putative respondents and the putative interested parties in Form 86.

4.  In fact, only the Board should be named as the putative respondent and the Director should be named as the putative interested party.

5.  Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and the name of the putative interested party to “Director of Immigration”.

The applicant’s case

6.  It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

7.  In sum, the applicant claimed for non-refoulement protection because if refouled to India, he would face serious harm or death at the hands of his stepmother and her brothers, as his stepmother wanted to take all of his father’s property.

Disposal on paper

8.  The applicant did not request for an oral hearing of the Leave Application.  This court is also satisfied that the Leave Application can be disposed of based on the written materials before this court.  Thus, the Leave Application is dealt with on paper.

Grounds for judicial review

9.  The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

10.  The applicant did not advance any ground for his intended judicial review in Form 86, nor in his supporting affirmation dated 21 October 2020.  The applicant only stated in Form 86 and the affirmation that he sought to review and reject the Board’s Decision, and added in the affirmation that the Board disregarded his dangerous situation.

Discussion

11.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness, or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

12.  Thus, despite the fact that the applicant did not advance any ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness, or irrationality as aforesaid.

13.  In assessing the appeal by the applicant, the Board held an oral hearing on 18 September 2020.  The applicant was present and was given the chance to present his case to the Board in person.  

14.  As can be seen from the Board’s Decision, the Board questioned the applicant in details regarding his fear for his stepmother.  The applicant admitted to the Board that his stepmother was no longer married to his father.  When the Board put to him that in that case his stepmother could no longer assert any claim to his father’s property, the applicant claimed that he remained afraid to return to India because of the threats that she and her brothers made against him before his departure.

15.  The Board had some concerns about the credibility of the applicant’s claims, but the Board found that it was no longer necessary to make detailed findings as to his credibility.  It was because even if his claims were accepted in their entirety, he had no basis for his claim to fear that his stepmother or her brothers would kill him were he to return to India, given that she was no longer married to his father and no longer had any claim to his father’s property.

16.  For the assessment of the applicant’s appeal/petition, the Board accepted the applicant’s claims about the dispute with his stepmother.  His evidence at the Board’s hearing, however, was that his father and stepmother were no longer married and that she no longer had any claim to his father’s property.  According to the applicant’s claims, that was the sole basis for the dispute between the applicant and his stepmother and her brothers, and the applicant was unable to offer any reason why they might continue to pose any threat to him should he return to India.

17.  In the circumstances, the Board found that the applicant had not established substantial grounds for concluding that there was a real risk that he would suffer harm at the hands of his stepmother or her brothers should he return to India.

18.  Thus, the Board concluded that the applicant had not substantiated a case for non-refoulement protection on any of the applicable grounds under the USM.

19.  The Board did not consider availability of state protection and viability of internal relocation.   However, as the Board had found that the applicant had completely failed to show that there was a real, genuine and current risk upon refoulement, it is not necessary for the Board to consider the availability of state protection.

20.  As to internal relocation, it is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that he qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997).  In other words, internal relocation only arises if the applicant has established a real risk of persecution in his home area (see Gardi v SSHD [2002] 1 WLR 2755).

21.  As it is the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm, it is not necessary for the Board to consider internal relocation.

22.  The finding of facts relating to a non-refoulement claim, including the assessment of evidence and risk of harm, was solely within the ambit of the Board in dealing with the applicant’s appeal/petition.  This court finds nothing wrong or unreasonable in the way the Board reached its decision.

23.  Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof.  The Board also correctly identified the issues and observed a very high standard of fairness.  This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision. 

24.  As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success.  It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

25.  For reasons aforesaid, the Leave Application is 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

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