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

HCAL 240/2020

[2025] HKCFI 2293

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 240 of 2020

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 is amended on the court’s own motion.

2.  The Leave Application be dismissed.

Observations for the Applicant:

Introduction

1.  By prescribed Form 86 filed on 22 January 2020, 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 8 November 2019 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 29 June 2018 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on all applicable grounds except torture risk^[1] which was covered by a prior decision of the Director dated 21 June 2013.  The Board’s Decision can be viewed at the following hyperlink:

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000240_2020_files/the_Board's_Decision.pdf

2.  In his Form 86, the applicant named the Director and the Adjudicator of the Board as the proposed respondents and did not name any interested party. As the Board should have been the proper respondent and the Director proper interested party, the Form 86 will be accordingly amended on the court’s own motion.

3.  The basis of the applicant’s claim is that he would be harmed or killed by drug dealers, criminals, politicians and government officials due to his past work writing articles about their involvement in drug trafficking and corruption in India.  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 to be held on 23 April 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.[2]  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[3], and further to make full and frank disclosure of all material facts to be verified by an affidavit.   

7.  In his affirmation in support of his Form 86, the applicant stated that the Board’s Decision was unreasonable and unfair, and that the Board failed to give him sufficient time and opportunity to arrange relevant evidence for his claim and appeal.  He also raised the ground that insufficient importance or weight had been given to state acquiescence.  The applicant further stated that though the Director listed relevant country of origin information (“COI”) that supported the applicant’s belief that the police in India would not be able to protect him, such COI was not considered or given enough weight.  In addition, the applicant complained of an unfair attitude by the Director, and a failure to meet the required high standards of fairness. However, he did not provide any particulars in support of his grounds.

8.  At the hearing, this court asked the applicant whether he had any further grounds he wished to submit in support of the Leave Application. The applicant said he had nothing to say or to add.

9.  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.[4] In the present case, the Board rejected the claim because it found that the applicant’s evidence was unreliable due to material discrepancies in his evidence, The Board drew his attention to the discrepancies, but the applicant was unable to provide a plausible or satisfactory explanation.  In addition, the Board found that the key parts of his narrative were vague, speculative or implausible, and his documentary evidence did not really support his allegations.  These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

10.  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. In the written grounds the applicant put forth, they are either general or simply unrelated to the Board’s Decision. At the hearing, the applicant was given an opportunity to further supplement his grounds. However, there was nothing he could further advance.  In the circumstances, I find that 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[5].

Order

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

12.  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