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

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 Applicant’s Form 86 be amended to name only the TCAB as the putative respondent, only the DOI as a putative interested party and the TCAB Decision dated 16 September 2020 as the decision sought to be reviewed; and

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

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 22 September 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review of a “decision dated 16-09-2020”. He named the Director of Immigration (the “DOI”) and the Torture Claims Appeal Board (the “TCAB”) both as proposed respondents and stated “same as above” for the interested party section.

2.  From the case record, there was a decision dated 16 September 2020 by the TCAB (the “TCAB Decision”), which affirmed a decision by the DOI dated 27 April 2017 in refusing the Applicant’s non-refoulement protection claim.

3.  I take it that the Applicant is seeking judicial review of the TCAB Decision and I amended the Form 86 on my own motion accordingly, naming only the TCAB as the putative respondent and only the DOI as a putative interested party.

4.  The TCAB Decision concerned only the Applicant’s claim on the basis of BOR2 risks as the Applicant’s claim based on the other three applicable grounds under the USM had been made and rejected by the DOI in 2014, and the refusal was affirmed by the TCAB in 2016.

5.  The Applicant requested for a hearing and he attended the same. When asked if he had anything to add he confirmed that he had not.

Background

6.  The Applicant is a national of India. He seeks non-refoulement protection on the basis that if he was returned, he would be harmed by his uncle with whom he had a land dispute. His personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be assessed through a hyperlink[1], and I shall not repeat the same herein.

Discussion

7.  In a judicial review, this court does not provide a further avenue of appeal. Though in non-refoulement case an enhanced standard in scrutinizing the decision of the TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI are the primary decision-makers. This 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 TCAB (Nupur Mst v Director of Immigration [2018] HKCA 524, [14(1)]). There must be a reasonably arguable claim with a realistic prospect of success before leave for judicial review will be granted (Peter Po Fun Chan v Winnie Cheung & Anor (2007) 10 HKCFAR 676).

8.  In his affirmation filed in support of this application, apart from asserting that the TCAB Decision was “unfair and unreasonable”, the Applicant did not point to any particular error of law, procedural unfairness or irrationality of the TCAB Decision.

9.  Looking at the TCAB Decision, the TCAB took into consideration the Applicant’s case and evidence, and all the material placed before it [17-35]. After thoroughly analysing the same, it came to the finding that the Applicant’s allegations were not made out [36-55].

10.  The TCAB further concluded that reasonable state protection [56-69] and internal relocation [70-72] were both available to the Applicant.

11.  The TCAB bore in mind the correct principles in respect of BOR2 risks and assessment approach [10-16] and concluded that it was not made out [74].

12.  I therefore do not see any error of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.

Conclusion

13.  For the above reasons, I am not satisfied that this court should intervene by way of judicial review. I therefore dismiss the application.

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