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

HCAL 711/2020

[2025] HKCFI 3023

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 711 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;

1.   The Form 86 be amended on the Court’s own motion, naming only the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office as the Putative Respondent, naming only the the Director of Immigration as the Putative Interested Party, and substituting the words “Appeal Board/Non-Refoulement Claims Petition Office” in place of “Immigration Dept Decision”; and

2.   Leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  The Applicant is a citizen of India. By a Form 86 dated and filed on 20 April 2020 (“Form 86”), the Applicant sought leave to commence a judicial review regarding what was said to be “Appeal Decision of Torture Claim Immigration Dept Decision on USM 26 March 2020”.

2.  The Form 86 is accompanied by a supporting affirmation also dated and filed on 20 April 2020 (“the Affirmation”), which says that as the Applicant is not satisfied by “the decision of immigration”, he wants the court to address his case as a higher authority. It exhibits a decision of the Torture Claims Appeal Board (“TCAB”)/Non-Refoulement Claims Petition Office (“NRCPO”) dated 26 March 2020 (“the TCAB Decision”)[1] relating to the Applicant’s claim for non-refoulement relief.

3.  No grounds for judicial review are set out in the Form 86 or the Affirmation.

4.  The Applicant did not seek an oral hearing of his application. I have hence dealt with such on paper.

5.  Given the aforesaid, I consider that the Applicant apparently seeks leave to commence a judicial review of the TCAB Decision, and not the preceding decision of the Director of Immigration (“the Director”) dated 14 May 2018 (“Director’s Decision”). However, if and insofar as he apparently seeks leave to judicially review the Director’s Decision, that application stands only to be rejected, and I do so.  Such an application is misconceived given both the existence and implications of the two-tier system and the lack of exceptional circumstances justifying such an application (Moshsin Ali [2018] HKCA 549; Yeni Setyawati v Torture Claims Appeal Board [2019] HKCA 1310).

6.  I have therefore amended the Form 86 of my own motion as set out above.

Background

7.  The salient portions of the Applicant’s background and case as to the incidents underlying his claim for non-refoulement relief, and the immigration and procedural history leading up to the TCAB Decision, are set out in the TCAB Decision (Paragraphs 1 to 10, 14, and 38 to 39). I will not repeat them but, in essence and for present purposes:

a.  The Applicant claims for non-refoulement protection on the grounds of Torture Risk[2], BOR 2 Risk[3], BOR 3 Risk[4], and Persecution Risk[5]. He had the benefit of assistance from the Duty Lawyer Service when making his claim via the Non-Refoulement Claim Form, and when attending an interview in connection with such. The basis of his claims was that he would be harmed, ill-treated, or killed by family members of his girlfriend (Karen) (“the Enemies”);

b.  The claim was rejected by the Director in the Director’s Decision and he submitted an appeal/petition to the TCAB/NRCPO; and

c.  The TCAB/NRCPO had, and had regard to, the documents set out in Paragraph 7 of the TCAB Decision. The appeal/petition was heard on 17 January 2020, at which the Applicant confirmed the truth and correctness of all the materials in the Hearing Bundle and that he wished to adopt the same as his evidence. He gave evidence at the hearing.

Legal Principles

8.  An applicant, even one acting in person, is required to identify the grounds of judicial review clearly and succinctly in the Form 86 (Ho Loy & Another v Director of Environmental Protection, (HCAL 21/2015, 22 December 2016) per Chow J. (as he was then) at §142).

9.  It is trite that judicial review is not 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 a decision of the TCAB/NRCPO 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).

10.  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] HKCA14, at §23).

Discussion

11.  As the Applicant has not identified or set out any grounds of judicial review, there is no allegation of any procedural unfairness in relation to, of any error of law in, and/or of any irrationality/failure to meet the enhanced Wednesbury test in, the TCAB Decision. However, given the seriousness of the issues at hand, 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.

12.  I have referred to and summarised portions of Paragraphs 1 to 10, 14, and 38 to 39 above. I add that the TCAB/NRCPO correctly set out, with reference to relevant authorities and principles, the nature of the proceedings before it, the relevant approach to considering the evidence and the Applicant’s case, including as to burden and standard of proof, sufficiency of materials, the future risk of harm, hearsay, past events, behaviour detrimental to credibility, COI, and as to the minimum level of severity. It also drew conclusions (giving adequate reasons and with reference to relevant facts, authorities, and principles) that the Applicant had exhibited behaviour detrimental to his credibility, that the Enemies were non-state actors, and that the latter in turn engaged relevant principles (which the TCAB/NRCPO identified) relating to BOR 3 Risk and Persecution Risk (Paragraphs 5, 11 to 37).

13.  After outlining the nature of the Applicant’s case in Paragraphs 38 to 39, the TCAB/NRCPO then moved on to make its material findings of fact. It accepted that the Applicant was from his home area, and that (in spite of some matters relevant to the Applicant’s credibility) he was in a relationship with Karen against the wishes of, inter alia, the Enemies as a result of which he was threatened by them and was also injured on one occasion to a minor extent. However, it held that on the evidence there was no, or no reliable evidence to show – and it was hence not accepted – that:

a.  the Enemies would harm or kill him if he were to return to India (since there was likely never any intention to seriously harm or kill the Applicant, especially if he were refouled in the present circumstances);

b.  he faced risk throughout India (primarily as the risk was, on the evidence, localised and he had stayed elsewhere without incident;

c.  the Applicant had suffered injuries to the requisite severity; and

d.  India was unwilling to help the Applicant for a Convention reason.

In doing so, the TCAB/NRCPO gave adequate reasons for reaching its conclusions (Paragraphs 40 to 42).

14.  The TCAB/NRCPO then applied those findings in relation to the individual non-refoulement grounds under the USM and concluded, as it was entitled to and giving adequate reasons referring to the relevant findings, authorities, and principles, that the Applicant had not established that he would be subjected to Persecution Risk, BOR 2 Risk, BOR 3 Risk, or Torture Risk if refouled to India, and that in any event (although it was unnecessary to do so) on the evidence Mumbai or Delhi were suitable cities to which the Applicant could internally relocate (Paragraphs 43 to 90).  Accordingly, the Applicant was unable to make out his claims for non-refoulement, the TCAB/NRCPO rejected his appeal, and the Director’s Decision was confirmed (Paragraph 91).

15.  I do not, from my aforesaid examination and scrutiny, 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 vitiating the TCAB Decision. This is especially so as to the assessment, reasoning, and findings regarding the risk of harm, and Torture Risk, Persecution Risk, BOR 3 Risk, BOR 2 Risk, which are all matters primarily within the province of the decision-making body and as to which adequate reasons were given.

16.  Given the TCAB Decision and the aforesaid analysis, I do not see that the Applicant’s application for leave is assisted by the contents of his Affirmation.

17.  I am not therefore 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 have ordered that the application for leave to apply for judicial review be 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