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

HCAL 3830/2019

[2025] HKCFI 1543

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3830 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;

Leave to apply for Judicial Review be dismissed.

Observation for the Applicant:

Introduction

1.  By a Form 86 filed on 23 December 2019 (the “Form 86”), the Applicant applied for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (the “TCAB”) dated 20 December 2019 (the “TCAB Decision”) which affirmed the decision by the Director of Immigration (the “DOI”) dated 27 September 2019 refusing the Applicant’s non-refoulment protection claim. He named the TCAB as the proposed respondent and the DOI as an interested party.

2.  The Applicant requested for a hearing of this application and he attended the same.

Background

3.  The Applicant is a national of India. He seeks non-refoulement protection on the basis that he will be harmed or killed by a person whom he had a land dispute with in India if he is 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

4.  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 (2007) 10 HKCFAR 676).

5.  In his affirmation filed in support of this application, the Applicant did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision. In his Form 86, the Applicant did attach a set of grounds on which relief is sought, however the complaints therein were but generic criticisms such as weight to be attached to evidence or mere assertions that different conclusions should have been reached.

6.  At the hearing, he said that he wanted to submit further documents concerning the land dispute and asked for time. I gave him until 27 March 2025 to file a further affirmation to adduce such documents, and thereafter whether or not he has done so I would proceed to deal with his case without any further hearing. He understood and agreed.

7.  The Applicant however subsequently submitted a letter that was received at the Registry on 24 March 2025; he did not file an affirmation as directed. In any event, the letter contained only (a) repetition of his allegations, (b) documents relating to his employment in India back in 2017 and (c) news of unrelated land disputes that turned violent. These are not what I had given leave for and also fall short of the Ladd v Marshall requirements to be admitted. I therefore refuse to take them into account.

8.  Looking at the TCAB Decision, all the available evidence was put before the TCAB and after careful consideration the TCAB came to reject the Applicant’s allegations [18-22].

9.  The TCAB then proceeded to analyse each of the four applicable grounds under the USM [30-49], bearing in mind the correct legal principles [6-17], and concluded that none was made out. The TCAB further concluded that internal relocation was also available to the Applicant [50-54].

10.  All in all, I do not see any error 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