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HCAL 300/2020
[2025] HKCFI 1822
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 300 OF 2020
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BETWEEN
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Gursharan Singh |
Applicant |
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and |
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Torture Claims Appeal Board |
Putative |
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Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for leave to apply for judicial review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)
Following:
Order by Deputy High Court Judge Michael WONG:
1. 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 4 March 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision dated 20 February 2020. The proposed respondent was stated to be the Torture Claims Appeal Board (“the Board”). Presumably, the applicant was referring to a decision made by the Board. However, the Board did not make such a decision on that day.
2. The Board made only one decision dated 13 August 2020 (“the Board's Decision”) concerning the applicant’s claim for non-refoulement protection under the Unified Screening Mechanism (“the USM”). The Board’s Decision can be viewed in the following hyperlink:-
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000300_2020_files/the_Board's_Decision.pdf
3. The Board’s Decision was made more than 5 months after the applicant had filed the Leave Application. Hence, it could not be the decision in respect of which relief is sought in the Leave Application. The applicant could not have made an application for leave to judicial review a decision that was not yet in existence.
4. The Board’s Decision was dealing with the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 31 January 2018. The Board rejected the applicant’s claim for non-refoulement protection as it failed on all the applicable grounds under the USM, and the Board confirmed the Director’s said decision.
5. Previously, there was another decision of the Director made on 25 January 2013, by which the Director rejected the applicant’s torture claim under Part VIIC of the Immigration Ordinance, Cap 115 (“the Torture Claim”). The applicant did not appeal against that decision.
6. Thus, the Director’s two decisions were not dated 20 February 2020 and the applicant could not have referred to such decisions either, even though the applicant had named the Director as an interested party in the Leave Application.
7. This court will therefore treat the Leave Application as being made by the applicant in respect of a non-existing decision, and the Leave Application can be dismissed on this ground alone.
8. Nevertheless, for the sake of completeness, this court will also deal with the merits of the Leave Application on the assumption that the decision in respect of which relief is sought is the Board’s Decision.
The applicant’s case
9. 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.
10. In sum, the applicant claimed for non-refoulement protection because, if he were to return to India, he would be harmed or killed by Suraj and Rinko due to their political differences. Suraj and Rinko were members of the Shiromani Akali Dal Party and gangsters involved in dangerous drugs, whereas the applicant and his family were supporters of the Indian National Congress Party.
Oral hearing
11. The applicant requested for an oral hearing of the Leave Application and his case was heard on 22 April 2025.
12. At the hearing, the applicant admitted that someone helped him to fill in Form 86 and he had no idea as to why the date of the decision in respect of which relief is sought was stated to be 20 February 2020.
13. With regards to the grounds for judicial review, the applicant again had no idea at all. He just said that he wanted to stay in Hong Kong because his parents and brother are all here and his life would be in danger if refouled back to India.
Grounds for judicial review
14. 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).
15. However, the applicant failed to identify any grounds for the intended judicial review in Form 86, nor in his supporting affirmation dated 4 March 2020. He merely stated in the affirmation that it was for leave to apply for judicial review against the decision of the adjudicator as well as the Director.
Discussion
16. First of all, only the Board’s Decision is reviewable by judicial process and not the Director’s decision, as there are established statutory procedures of appeal from the Director to the Board. The applicant did not invoke those procedures in respect of the Director’s decision dated 25 January 2013, but had invoked those procedures in respect of the Director’s decision dated 31 January 2018.
17. The Director’s decision dated 25 January 2013 was dealing with the Torture Claim. Although the applicant did not appeal against that decision and the Director did inform the applicant that the Torture Claim would not be reviewed under the USM, the Board did consider the Torture Claim in the Board’s Decision and concluded that the applicant did not make out such a claim, as well as his claim made on all the other applicable grounds.
18. The Director’s two decisions were hence superseded by the Board’s Decision and are no longer susceptible to judicial review (see Re Moshsin Ali, HCAL 2048 of 2018, dated 28.09.2022). Thus, this court will only consider the Leave Application in respect of the Board’s Decision on the assumption that it could be so considered in the Leave Application, notwithstanding that it was made after the applicant had filed the Leave Application.
19. 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).
20. In assessing the applicant’s appeal/petition, the Board held a hearing on 26 November 2019 and the applicant was present. The Board re-assessed the applicant’s claim on all the applicable grounds, including the Torture Claim. The Board found that the applicant had not suffered any serious harm or serious injury and the applicant’s claim failed on all the applicable grounds.
21. Further, the Board found that the applicant’s risk, even if real, was confined to the local area where he and his family had lived. Internal relocation for the applicant was viable and would not be unduly harsh given his education, work experience in farming, jewellery trade and garment business.
22. Thus, the Board did consider the applicant’s alleged danger and concluded that he was not entitled to non-refoulement protection on all the applicable grounds under the USM.
23. The finding of facts was solely within the ambit of the Board. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion based on the evidence available to the Board.
24. The fact that the applicant’s parents and brother are all in Hong Kong is irrelevant to the Leave Application.
25. 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 error 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.
26. In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be a reasonably arguable claim which enjoyed 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
27. For reasons aforesaid, the Leave Application is dismissed.
Dated the 12th day of May 2025
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( Thomas Chan )
for Registrar, High Court
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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
Notes for the applicant:
If leave has been granted, the applicant or the applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent/Handed to the applicant/the applicant’s solicitors
on 12/5/2025
Applicant’s ref. no:
Nil |
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Sent/Handed to the putative respondent / the putative respondent’s solicitors / such putative interested parties as may be directed by the Court / the putative interested parties’ solicitors on: 12/5/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 10168/18/152/IN1915
Director of Immigration
Putative interested party’s ref. no.: QA T/C 3295/17 (Formerly RBCZ 2000521/14),
QA T/C 397/12 (formerly RBCZ/68/12)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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