GURDEEP 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, naming the Director of Immigration as the Putative Interested Party.

(2)   The application for leave to apply for judicial review out of time be dismissed.

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 11 August 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review against the decision of the Torture Claims Appeal Board (the “TCAB”) dated 17 March 2020, which affirmed the decisions of the Director of Immigration (the “DOI”) dated 28 December 2015 and 14 March 2017. 

2.  I amend the Form 86 on my own motion to name the DOI as the putative interested party.

3.  The Applicant requested for a hearing of this application and the hearing was supposedly to be held on 8 August 2025.  The Applicant was absent but it was soon discovered that he was in custody.  A resumed hearing was scheduled to take place on 15 October 2025.  This time the Applicant was brought to Court but he said that he was unable to trust the interpreter (for it was the same interpreter in his criminal proceedings leading to his conviction and eventual custody, and the Applicant said that the interpreter omitted to translate important parts of his evidence last time).  In order to ensure that the Applicant would have a fair hearing, I adjourned the hearing again to 5 November 2025.  I specifically warned him that he was expected to deal with the application fully at that hearing.

4.  The Applicant was brought to Court on 5 November 2025.  There were 2 preliminary matters to deal with at the start.  First, on 21 October 2025 the Court received a notification that the Applicant had applied for legal aid (it now transpired that the legal aid application was refused in early January 2026).  I therefore had to consider whether the legal aid stay ought to be lifted such that the hearing may proceed. Second, on 4 November 2025 (i.e. a day before the hearing) the Court received a letter from the Applicant essentially seeking to adjourn the hearing because he needed time to collect additional evidence from his home country (he was in custody so it was impossible for him to do so).

5.  I can take both issues together; it is almost identical to the situation in Azmat Ullah v Torture Claims Appeal Board [2023] HKCFI 3308.  For the same reasons given by Deputy High Court Judge To at [3], I would have lifted the legal aid stay in order to allow the 5 November 2025 to proceed substantively because the Applicant did not apply for legal aid when he filed his leave application but waited till the last minute.  This bears the hallmark of delaying his refoulement.  Of course as matters now stand it made no difference because legal aid was indeed refused.  I also refuse the adjournment application because the Applicant was unspecific as to the nature of evidence he had in mind [3]; he only said that he would be able to produce evidence proving that there was indeed a land dispute, but given the nature of this application such evidence would be of no real assistance.  Indeed, for reasons explained below, the Applicant failed to disclose any reasonable grounds for judicial review.

6.  At the hearing on 5 November 2025, I asked the Applicant what he might like to add in relation to the substantive application if I should lift the legal aid stay and refuse his adjournment application.  He requested that the judicial review proceedings should carry on but otherwise he had nothing to add.  

Background

7.  The Applicant is a national of India.  He seeks non-refoulement protection on the basis that he would be harmed or killed because of the existence of a dispute with the tenant of a shop owned by the Applicant’s parents.  The tenant refused to pay rent, and when the Applicant demanded payment the tenant assaulted and threatened him.  The Applicant’s personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be viewed through a hyperlink[1]. I shall therefore not repeat them.

Discussion

8.  The leave application operates as a filtering process and there is no requirement or expectation to give elaborate reasons for my decision: Re Zunariyah [2018] HKCA 14 at [23].  It is sufficient to state my observations after considering the TCAB Decision and the materials adduced by the Applicant.

9.  I remind myself that in a judicial review, this court does not provide a further avenue of appeal.  Though in non-refoulement cases 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.  A finding of fact is exclusively within the realm of the TCAB, and 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 at [14(1)].  There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. 

10.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (unreported, HCAL 21/2015, 22 December 2016) at [142], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

11.  The Applicant did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision in the Form 86 nor in his affirmation in support, apart from stating that he was dissatisfied with the TCAB Decision essentially because he remained in danger.

12.  As can be seen from the TCAB Decision, the TCAB took into account all the evidence available [1-11] and found that on the basis of the same, applying also the correct legal principles in respect of all the applicable grounds [18, 23, 29-30, 32, 33-35] and properly considering Country of Origin information [5, 12, 26-28], the Applicant’s allegations were insufficient to make out any of the applicable grounds [12-16, 19-22, 24, 25, 31, 32, 36-37, 40-43].  The TCAB specifically held that the ill-treatments allegedly suffered by the Applicant fall short of meeting the minimum level of severity for non-refoulement protection [19-22].  There were conclusions that the TCAB was fully entitled to come to.

13.  The TCAB further concluded that state protection was available on the evidence [25, 28]. 

14.  All in all, I do not see any errors of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.  The Applicant’s intended challenge to the TCAB Decision is therefore not reasonably arguable, and accordingly the application for leave to apply for judicial review is dismissed.  I further note that the application was brought out of time, given that Order 53 rule 4(1) requires the leave application to be taken out within 3 months after the TCAB Decision was made. Since I have held that the application is without merit, I also refuse to grant an extension of time (there was in any case no explanation for the delay).

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