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

HCAL 3812/2019

[2025] HKCFI 1489

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3812 of 2019

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

Following;

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

1.   The Form 86 is amended on the Court’s own motion; and

2.   Leave to apply for Judicial Review be dismissed.

Observation for the Applicant:

Introduction

1.  By a Form 86 filed on 20 December 2019 (the “Form 86”), the Applicant applied for leave to apply for judicial review of “Immigration Department Torture Claims appeal Board Decision on 25 Nov 2019”.  He named “Immigration Department Torture Claims appeal Board” as the proposed respondent and also an interested party.

2.  From the papers filed for this application, there was a decision made by the Torture Claims Appeal Board (the “TCAB”) dated 25 November 2019 (the “TCAB Decision”), which affirmed the decision dated 2 October 2018 by the Director of Immigration (the “DOI”).

3.  As such I amended the Form 86 to name the TCAB as the putative respondent and the DOI as the putative interested party.

4.  The Applicant requested for a hearing of this application and he attended the same.  When asked whether there was anything apart from the documents filed that he wished to add, he confirmed that there was not.

Background

5.  The Applicant is a national of India.  He seeks non-refoulement protection on the basis that he will be seriously harmed by his aunt and her relatives in India if he is to be returned.  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

6.  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 & Anr 10 HKCFAR 676).

7.  In his affirmation filed in support of the Form 86, the Applicant has only exhibited the TCAB Decision and has not stated any complaint against the same, not to mention any error of law, procedural unfairness or irrationality thereof.

8.  As can be seen from the TCAB Decision, the TCAB was presented with all the evidence from the Applicant [5-32] and after careful consideration of the same it came to the conclusions on facts [33-40].

9.  With the findings in mind, the TCAB then proceeded to analyse each of the four applicable grounds under USM, identifying in each instance the correct legal principles to apply, and came to the conclusions that none of them was made out [42-75].

10.  All in all, I do not see any errors of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.

Conclusion

11.  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