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

HCAL 785/2020

[2025] HKCFI 2965

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 785 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;

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

Observations for the Applicant:

1.  By a Form 86 filed on 28 April 2020 (“Form 86”), the Applicant sought leave for judicial review of the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“TCAB”) made on 24 April 2020 (“the TCAB Decision”). A copy of the TCAB Decision can be viewed by the following hyperlink[1].

2.  The TCAB Decision was made pursuant to a petition/appeal from a decision of the Director of Immigration (“DI”) dated 29 January 2018. The DI has been named as a putative interested party to this application.

3.  In his Form 86 and supporting affirmation, the Applicant did not point to any errors of law, procedural unfairness or irrationality of the TCAB Decision. According to the TCAB Decision, the TCAB conducted an oral hearing for the Applicant’s appeal/petition. After hearing, the TCAB found the Applicant’s evidence confusing and inconsistent, and did not accept his claim that he would be seriously harmed or killed by his neighbour if he were to return to India. The TCAB had in mind the guidance set out in the UNHCR Handbook and considered whether any benefit of doubt should be given. However, after evaluation of the implausibility and inconsistency of the Applicant’s claims, the TCAB was satisfied that he had exaggerated the conflict between the Applicant’s family and his neighbour. That being the case, it follows the TCAB did not accept that the Applicant would be subject to any risk of persecution, torture or infringement of his rights under Articles 2 and 3 of the Hong Kong Bill of Rights should he return to India, and the DI’s first-tier decision was affirmed.

4.  It has been reiterated time and again that the primary responsibility for the factual assessment of whether any future risk of ill-treatment exists lies with TCAB. In the absence of any errors of law, procedural unfairness or irrationality, the Court would not reopen TCAB’s findings or make a determination on the case afresh. The role of the Court in a judicial review is not to provide a further avenue of appeal (see Re Lakhwinder Singh [2018] HKCA 246).

5.  I have reviewed the TCAB Decision vigorously, but do not find the proposed judicial review reasonably arguable. The leave application is thus 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