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

HCAL 3467/2019

[2025] HKCFI 5348

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3467 of 2019

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

Following:

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

1.  The Form 86 be amended on the court’s own motion.

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

Observations for the Applicant:

Introduction

1.  By a “Notice of application to apply for leave for judicial review” in the prescribed Form 86 filed on 22 November 2019, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 7 November 2019 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 19 July 2018 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on all applicable grounds. The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003467_2019_files/the_Board's_Decision.pdf

2.  In the Form 86, the applicant named the Board and the Director as the proposed respondents and interested parties. As the Board should have been the proper respondent and the Director the interested party, the Form 86 shall be amended accordingly on the court’s own motion.

3.  The basis of the applicant’s claim was that, if refouled, he would be harmed or killed by his youngest uncle who was not satisfied with the property distribution made by the applicant’s grandmother. The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them. Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

4.  At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 8 August 2025. The applicant attended the hearing in person. After having heard from him, this court informed him that the decision would be reserved, and be sent to his updated address.

Discussion

5.  The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[1] It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

6.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[2], and further to make full and frank disclosure of all material facts to be verified by an affidavit. The applicant’s Form 86 contained no such grounds at all. In his supporting affirmation, the applicant set out a number of confusing grounds in support of the Leave Application, which can be briefly summarized below:

(1)  He was not provided with legal representation at the hearing before the Board;

(2)  The Board’s Decision was not read or translated to him;

(3)  The Board had adopted a biased approach by using the same COI which supported the applicant’s claim to dismiss his appeal; and

(4)  The Board had made baseless assumptions in assessing his case.

7.  At the hearing, this court asked the applicant whether he had any grounds he wished to submit in support of the Leave Application. The applicant stated that he did not know what to say, as he did not know what kind of application he had made. I then asked the applicant who prepared the documents for the applicant in the Leave Application. The applicant said he did not know who had filed the Leave Application for him. In view of the applicant’s allegation that the Board’s Decision was not translated to him, this court briefly adjourned the hearing and requested the interpreter to interpret the Board’s Decision to him. When the hearing was resumed after the interpretation was done, the court asked the applicant again if he had anything to say. The applicant stated that his life was still in danger and he did not want to go back to his country.

8.  As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality.[3] In the present case, the Board found that the inconsistencies in the central details of the applicant’s evidence undermined the credibility of his claims. The Board found that there was no dispute in relation to the applicant’s family home as alleged. The Board therefore assessed that the applicant would not face any real risk of harm. These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

9.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness. I am satisfied that the Board was entitled to conclude that there was no risk of harm after having found that the applicant’s claims were not credible.

10.  As for the applicant’s grounds in relation to the lack of interpretation and legal representation, I note that all the court documents filed in this Leave Application were in English. At the hearing, the applicant also confirmed that someone had prepared all the documents for him. Hence, I find that he would have access to language assistance of his own if he found it necessary. It has been repeatedly stated by the Court of Appeal that as a matter of law, a non-refoulement claimant is not entitled to free legal representation at all stages of the process and that the high standard of fairness required by law does not entail interpretation service being made available to an applicant all the time as he desires: Re Zunariyah [2018] HKCA 14 at [18]; Re Zahid Abbas [2018] HKCA 15 at [11] and Re Tariq Farhan [2018] HKCA 17 at [11]. In any event, the applicant was legally represented in the initial preparation of his case by the completion of the non-refoulement claim form and screening interview with the Director, which formed the basis of his claim. I therefore do not find the non-availability of legal representation in the processes before the Board amounts to any procedural unfairness. As for the applicant’s other two grounds concerning the COI and the alleged assumptions made by the Board, the applicant has not condescended to any particulars either on paper or at the hearing. All in all, the applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision. The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[4].

Orders

11.  The Form 86 be amended on the court’s own motion.

12.  The applicant’s application for leave to apply for judicial review 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