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HCAL 195/2020
[2025] HKCFI 2084
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 195 OF 2020
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Baljinder Singh |
Applicant |
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and
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Torture Claims Appeal Board
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Putative Respondent |
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and
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Director of Immigration
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Putative 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. On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”.
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 15 January 2020 and filed on 13 March 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 8 January 2020. The Board’s Decision can be viewed in the following hyperlink:-
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000195_2020_files/the_Board's_Decision.pdf
2. The Board rejected the applicant’s claim for non-refoulement protection as not substantiated on all the applicable grounds under the Unified Screening Mechanism (“the USM”) and confirmed the decision of the Director of Immigration (“the Director”) dated 24 September 2019.
Amendment
3. The applicant named the Director of Immigration as both the putative respondent and the putative interested party in Form 86, when only the Board should be named as the putative respondent. Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board”.
The applicant’s case
4. 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.
5. In sum, the applicant claimed for non-refoulement protection because he feared being harmed or killed by a man named Mr S as they had a conflict about the use of a sports ground and the applicant reported the assault by Mr S to the police.
Grounds for judicial review
6. 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).
7. The applicant did not advance any ground for his intended judicial review in Form 86, nor in his supporting affirmation dated 15 January 2020. The applicant merely stated in his supporting affirmation that he wanted to judicial review the refusal decision of the Board because it is unfair and unreasonable.
Discussion
8. 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).
9. In assessing the appeal by the applicant, the Board held an oral hearing on 30 December 2019. The Board found that the applicant was not a credible witness. The Board rejected the applicant’s claims in its entirety and found that the applicant had fabricated those claims in order to apply for non-refoulement protection.
10. Thus, the Board concluded that the applicant did not face any real risk from Mr S and 4 other people. Other than his claims related to the fear of harm due to the alleged dispute with Mr S, the applicant did not raise any other basis for non-refoulement.
11. Upon that conclusion, the Board decided that there was no need to assess the viability of internal relocation, and hence made no findings in relation thereto. It is a well-recognised principle that the decision-makers only need 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).
12. The Board also did not consider availability of state protection as the Board rejected the applicant’s claim in its entirety, including the allegations that the applicant had made any complaint to the police against Mr S or the other 4 people and that the police failed to act. Thus, it was not necessary for the Board to consider state protection either.
13. The finding of facts was solely within the ambit of the Board. This court finds nothing wrong in the way the Board reached its conclusion based on the evidence available to the Board. The Board’s Decision is not unfair or unreasonable.
14. 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.
15. 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
16. For reasons aforesaid, the Leave Application is dismissed.
Dated the 21st day of May 2025
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( Thomas Chan )
for Registrar, High Court |
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 his 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: 21/5/2025
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: 21/5/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 16358/19/10/7/IN3126
Director of Immigration
Putative interested party’s ref. no.: QA T/C 709/19 (formerly RBCZ 189/19)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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