TEJE JASBIR SINGH v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 1156/2020

[2025] HKCFI 4672

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1156 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 oralsubmissionsbythe Applicant in open court;

1.   The Form 86 be amended on the Court’s own motion, substituting the “Torture Claims Appeal Board/Non-Refoulement Claims Petition Office” as the Putative 2^nd Respondent in place of “The Adjudicator of the Non-refoulement Claims Petition office appointed to determine the Applicant’s Petition”, and naming the Director of Immigration 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 a Form 86 dated and filed on 11 June 2020 (“Form 86”), and an affirmation also dated and filed on 11 June 2020 (“Affirmation”), the Applicant sought leave to commence a judicial review of:

a.  A decision of the Director of Immigration (“Director”) dated 28 May 2018 (“Director’s Decision”); and

b.  A decision of the Torture Claims Appeal Board (“TCAB”)/Non-Refoulement Claims Petition Office (“NRCPO”) dated 2 June 2020 (“TCAB Decision”)[1] that was exhibited to the Affirmation.

2.  I will use the abbreviations and definitions from the TCAB Decision unless otherwise specified herein.  

3.  The Form 86 was accompanied by a supporting affirmation also dated and filed on 11 June 2020 (“Affirmation”), which exhibited inter alia a single page document containing several Grounds on which Relief is Sought (“Grounds”). 

4.  The Applicant appeared at the oral hearing of his application on 6 August 2025. He said he had nothing to add. 

5.  The Form 86 names the Director as the 1^st putative respondent, the adjudicator of the NRCPO as the 2^nd putative respondent, and does not name an interested party.  I have amended the Form 86 as set out above since the TCAB Decision is a decision of the TCAB/NRCPO, and as in any event the Director should be an interested party in relation to the application for leave to apply for judicial review of the TCAB Decision. 

Background

6.  This is set out in the TCAB Decision.  While I will not repeat the contents thereof, in summary:

a.  The Applicant claimed non-refoulement relief on the basis that if he were sent back to India, he would be harmed or killed by his neighbours GS, SS and KS;

b.   Those claims were assessed on the grounds of Torture Risk[2], BOR 2 Risk[3], BOR 3 Risk[4], and Persecution Risk[5] and were rejected by the Director in the Director’s Decision on 28 May 2018;

c.  The Applicant sought relief from the TCAB/NRCPO, which held a hearing in relation to the Applicant’s non-refoulement claims on 13 May 2020; and

d.   The TCAB/NRCPO handed down the TCAB Decision on 2 June 2020 in which it found that the Applicant had not established his claim for non‑refoulement relief under any of the applicable grounds, and confirmed the Director’s Decision.

Legal Principles

7.  An applicant, even one acting in person, is required to identify the grounds of judicial review clearly and succinctly in the Form 86, and to fully and frankly disclose all material facts and potential legal answers (Ho Loy & Another v Director of Environmental Protection, unrep.  HCAL 21/2015, 22 December 2016, Chow J. (as he was then) at §142; Leung Kwok Hung, unrep., HCAL 83/2012, 28 September 2013, Lam J. (as he was then) at §35; Begum Khadija [2018] HKCA 571; Khan Kamran [2020] HKCA 380). 

8.  It is trite that the role of the Court in a judicial review is not to provide a further avenue of appeal, and that the Court should not usurp the role of the TCAB/NRCPO which is (and together with the Director are) the primary decision‑makers.  The assessment of evidence, COI materials, and credibility, risk of harm, state protection and viability of internal relocation are primarily within the province of the TCAB/NRCPO and the Director, which are entitled to make evaluations based on the evidence available and to decide the weight to be given to them.  While the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, 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 TCAB/NRCPO.  (Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; Nupur Mst v Director of Immigration [2018] HKCA 524; Re Kartini [2019] HKCA 1022; Re Rupinder Singh [2021] HKCA 886). 

9.  In order for me to give leave for judicial review, I have to be satisfied that there is an intended ground of review which is reasonably arguable, which is one that enjoys a realistic prospect of success (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676).  As a leave application of this sort is meant to be a filtering process, I am not expected to give elaborate reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23). 

Discussion

10.  The Applicant relies on the Grounds in Exhibit “TJS-3” to his Affirmation, all of which have been adapted almost word for word (including typographical errors e.g. the use of “complied” rather than “compiled”) from other cases:

a.  At Paragraph 1 of the Exhibit, “The Applicant believes that the Director of Immigration and the Adjudicator of Appeal Board reached the decision wrongly in assessing his Non‑refoulement claim.  He believes that these decisions were not reasonable and fair (as required by the Wednesbury test).  Indeed, the right to life is protected under Article 28 of the Basic Law and Article 2 of the Bill of Rights.  In practice, the right to life is mainly protected by the criminal law and it must be protected from extra-judicial killings such as the applicant may face if he would be deported back to his country.” (Ground 1)

b.   Also at Paragraph 1 of the Exhibit, “In addition to this, the applicant believes that the Adjudicator failed to give him sufficient time and chance to arrange relevant evidence to his non-refoulement claim as well as his appeal.” (Ground 2)

c.  Various grounds at Paragraphs 2 to 4 of the Exhibit which all relate to the Director’s Decision (Grounds 3) and which I reproduce verbatim below:

“2. From the Director's Decision, it was evident that the director has failed to appreciate or give the proper importance or weightage to the presence of state Acquiescence in the Applicant's case. This has indeed led to an unfair outcome of rejecting the Applicant's non-refoulement claim. The applicant was tortured at the Behest and the state law enforcement agencies as well as those in the high ups of political circles. It is submitted that the state would be rendered liable to the applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence.

3. The Applicant submits that the Director has failed to take such argument into account or that the Director has failed to give enough weight to such argument before reaching the Decision. Further, the applicant submits that although the Director had listed relevant COIs which support the Applicant's aversions that the police in his country would not be able to protect. The Director failed to consider or give enough weightage to those evidence and ruled otherwise.

4. This was a clean case of unfair attitude shown by the Director which in itself is enough to render his Decision void. In Fact, the corruption and incompetency of the administration in his country is still a very serious problem. Various human rights organization has complied reports on the matter which stated testament to the applicant's assertions. Further, the director has failed to attain the high standard of fairness required by the Wednesbury test in the decision with the arguments put forward above. As such, the decision of the director should be considered unreasonable in the scope of Public Law. The Applicant respectfully asks the Court to grant leave to the Applicant for judicial review.”

11.  However, once the Applicant had pursued his appeal to the TCAB/NRCPO the Director’s Decision was (absent exceptional circumstances, of which none have been suggested to me) no longer susceptible to judicial review (Moshsin Ali [2018] HKCA 549; Yeni Setyawati v Torture Claims Appeal Board [2019] HKCA 1310; Sherpunja Thapa Kul Prasad [2022] HKCFI 2434 §18).  Hence Grounds 3 and all of the allegations therein must be dismissed, and when considering Ground 1 I ignore the portions that relate to the Director and/or the Director’s Decision as those are also not reasonably arguable and must be dismissed. 

12.  The remaining portion of Ground 1 is entirely inadequate as it merely consists of generic, vague, and unparticularised assertions using selected keywords and phrases without reference to any underlying facts or matters establishing why, how, and where each of those complaints arise in relation to the TCAB Decision.  Such general assertions or propositions of law without particulars are not effective grounds to support a judicial review and cannot assist an applicant (Re Mizan Sikder [2019] HKCA 20 at §17; Re Aziz Nasir [2019] HKCA 578 at §17; Re Kharsu Numan [2019] HKCA 626 at §24; Re Salim Ahmed [2020] HKCA 244 at §20; Haider Khalil [2021] HKCA 223 at §16). 

13.  Nevertheless, given the seriousness of the issues at hand, and notwithstanding the similarly vague and unparticularised nature of Ground 2, I have considered the TCAB Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard and bearing in mind the need for a high standard of fairness, and both Grounds. 

14.  The TCAB Decision set out the Applicant’s background, immigration and procedural history, and the documents that had been taken into account including COI (Paragraphs 1 to 25).  This was followed by the principles and approach in assessing each of the three types of risk (Paragraphs 26 to 40) and an outline of the various accounts given by the Applicant at various stages including at the hearing before the TCAB/NRCPO (Paragraphs 41 to 70).

15.  The TCAB/NRCPO then set out its conclusions as to the Applicant’s credibility and the facts. It found that it had not been given reliable evidence about circumstances surrounding the Applicant’s altercation with neighbours in his home village. It also did not accept that the Applicant faced a risk of serious harm or death in his home area, or that state protection was unavailable. It also found in any event that the Applicant could reasonably and safely live elsewhere in India, such as in Delhi and Mumbai. Accordingly, none of the types of risk had been established (with Persecution Risk also being rejected due to the lack of a Convention reason) and the Director’s Decision was confirmed (Paragraphs 71 to 87).

16.  From my examination and scrutiny I do not see that the Applicant has any reasonably arguable case that there was procedural unfairness (bearing in mind the need for a high standard of fairness), an error of law, and/or irrationality/failure to meet the enhanced Wednesbury test that is sufficient to vitiate the TCAB Decision, and that is sufficient to justify the grant of leave, including as set out in Grounds 1 or 2.  In particular:

a.  As to the remnants of Ground 1, I see no Wednesbury unreasonableness or irrationality in the TCAB Decision, including in its assessment of and conclusions as to BOR 2 Risk; and

b.   As to Ground 2, I see no reasonable argument that the TCAB/NRCPO’s approach gives rise to any reasonably arguable public law grounds (including of any divergence from the requisite high standard of fairness) that would justify a grant of leave.  Firstly, and as a matter of context, the Applicant was legally represented before the Director, and hence had already had ample opportunity at that stage to arrange relevant evidence in support of his claim.  Secondly, and given that the hearing before the TCAB/NRCPO took place nearly 2 years after the Director’s Decision, the Applicant had even more time and opportunity to arrange (and to produce to the TCAB/NRCPO) all evidence relevant to his non‑refoulement appeal/petition, and to prepare for his appeal.  Thirdly, there is no evidence that the Applicant complained about such issues (or indeed of any difficulty caused by such), or sought more time and/or an adjournment to arrange more evidence or to prepare for his appeal, whether at the hearing or at any stage prior to the TCAB Decision. Finally, and in any event, the Applicant has not provided any specifics of the evidence or matters relevant to his appeal that he claims he would have arranged, nor has he explained how such (or the apparent failure to allow him to “arrange” such) would have affected, impeached, or vitiated the analysis or conclusions reached in the TCAB Decision; and

c.  I see no public law error in relation to the assessment, reasoning, and findings regarding the Applicant’s evidence, credibility, risk of harm, state protection, internal relocation, which are all matters primarily within the province of the decision‑maker, or as to Torture Risk, Persecution Risk, BOR 3 Risk, and BOR 2 Risk.

17.  There is hence no basis for the court to intervene by way of judicial review, and I am not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success.  

Conclusion

18.  In the circumstances, I make the orders above and dismiss the application for leave for judicial review. 

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