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

HCAL 3672/2019

[2025] HKCFI 1136

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3672 of 2019

; Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court;

1.  Form 86 be amended as follows:- the Director of Immigration be named as the Putative Interested Party; and

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

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 10 December 2019 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against the decision of the Torture Claims Appeal Board/ Non-Refoulement Claims Petition Office (the “Board”) dated 4 December 2019 (the “Board’s Decision”).

2.  In the Form, the Applicant has named the Board as both the proposed respondent and the proposed interested party.  As it is trite that the Board should be the proposed respondent in the case of this sort whereas the Director of Immigration (the “Director”) should be the proposed interested party, I make an order to amend the same accordingly on the court’s own motion.

3.  The Applicant had requested for an oral hearing for the application.  The hearing took place on 4 March 2025.  The Applicant attended the hearing in person.  In the hearing, the Applicant indicated to the Court that he had no further submissions to make, apart from those already included in the Form and in the supporting Affirmation.  The Applicant further indicated that he had no new documents to submit.

Background

4.  The Applicant’s background, the basis of his claim and the arguments he advanced had been set out in details in the Board’s Decision, and it is not necessary for me to repeat the same here.  The hyperlink to the Board’s Decision is included below [1] for reference.

Discussion

5.  The applicable legal principles relating to application of this sort are well established.  The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases, the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence, country of origin information (COI) materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director).  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 Board.  (See Nupur Mst v Director of Immigration [2018] HKCA 524, at §14)

6.  In the Form and in the supporting Affirmation, the Applicant argued that the Board did not properly assess his claim.  He further alleged that he was not provided free legal assistance, and had no legal assistance during and prior to the appeal process.  As the Applicant said he cannot write English or Cantonese (which I take it to mean Chinese), the Applicant claimed that this affected his presentation and as a result, he was never given a fair assessment. 

7.  I do not consider the Applicant’s contention meritorious.  First, the Court of Appeal has repeatedly held that neither the high standard of fairness laid down in Secretary for Security v Sakhevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 2007 prescribed that a claimant under Convention Against Torture (CAT), or a claimant under Articles 2 or 3 of Section 8 of the Hong Kong Bill of Rights Ordinance (Cap. 383) or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Ahmed Syed Rafiq [2018] HKCA 178, at §22.  The Applicant had the benefit of Duty Lawyer Service when lodging a Supplementary Claim Form dated 12 June 2018.  I do not find anything amiss arising from the alleged lack of legal representation in the process before the Board.  The Applicant was also provided a fair opportunity to present his case before the Board on 30 October 2019 with the assistance of an interpreter.  I further note that the Applicant did not raise this “lack of legal assistance” argument before the Board. 

8.  Second, in so far as the Applicant complained about the language difficulty, in Re Karamjit Singh [2018] HKCA 460, the Court of Appeal adopted the rationale of the Court of First Instance that it could not have been the intention of any authority laying down the principle of a high standard of fairness that the principle would include provision of interpretation service at any time a claimant desired or required.  It must be borne in mind that it was the Applicant’s choice to come to Hong Kong where the official languages are Chinese and English.  In the circumstances, he has to live with or cope with his language disability.  He cannot expect to have the luxury of any documents to be fully translated into his first language for his benefit.  In any event, I note that all the court documents (the Form and the supporting Affirmation) were all written in English.  This indicates either the Applicant is familiar with the English language or that he had access to, or was able to seek, such language assistance as he may require.  There is no evidence to suggest that there was procedural unfairness in this regard.

9.  Further, having fully considered the Board’s Decision.  I do not find any error of law, procedural unfairness or irrationality.  Neither has the Applicant been able to demonstrate any of the same.  There is nothing to indicate that the Board had failed to take into account any relevant matters. The Board’s Decision was comprehensive with adequate reasons provided.  It satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational.  There is plainly no basis to say that the Board had failed to assess the Applicant’s claims properly.

10.  In the premises, I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success.  Accordingly, I refuse to grant leave for judicial review and the Leave Application is hereby dismissed.

11.  Leave application of this sort is meant to be a filtering process and I am not expected to give elaborated reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23).  Suffice for me to state that in reaching the decision, I have considered all the relevant documents before me, as well as the grounds advanced by the Applicant.    

Conclusion

12.  In the premises, I make an order that the Form be amended as described above and the Leave Application be 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

Form CALL-1

[1] https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003672_2019_files/the_Board's_Decision.pdf