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

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

1.   Form 86 be amended, naming only the Director of Immigration as the Putative Interested Party.

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

Observations for the Applicant:

Introduction

1.  By a Form 86 dated 8 April 2021 (the “Form 86”), the Applicant applied for leave to apply for judicial review against the decision by the Torture Claims Appeal Board (the “TCAB”) dated 30 March 2021 (the “TCAB Decision”), which affirmed the decision of the Director of Immigration (the “DOI”) dated 6 September 2018.

2.  I amend the Form 86 on my own motion to name only the DOI as the putative interested party.

3.  The Applicant requested for a hearing of this application and he attended the same.  When asked, he said that he had nothing to add.

Background

4.  The Applicant is a national of India.  In gist, his claims centre around the fear of the threat of harm or loss of life by Aman, the brother of his girlfriend, and his family, who opposed their inter-caste relationship.  The Applicant’s personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be viewed through a hyperlink[1]. I shall therefore not repeat them. Unless otherwise specified, TCAB’s abbreviations and descriptions are adopted herein.

Discussion

5.  The leave application operates as a filtering process and there is no requirement or expectation to give elaborate reasons for my decision: Re Zunariyah [2018] HKCA 14 at [23].  It is sufficient to state my observations after considering the TCAB Decision and the materials adduced by the Applicant.

6.  I remind myself that in a judicial review, this court does not provide a further avenue of appeal.  While I also remind myself that in non-refoulement cases, I would adopt an enhanced standard in scrutinizing the decision of the TCAB given the seriousness of the issue at hand, this court would not usurp the role of the TCAB, which together with the DOI are the primary decision-makers. A finding of fact is exclusively within the realm of the TCAB, and 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 at [14(1)].  There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. 

7.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (unreported, HCAL 21/2015, 22 December 2016) at [142], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

8.  The Applicant’s affirmation enclosed a document titled “Grounds on which relief is Sought”, which alleges that the TCAB was “in breach of procedural fairness” for the grounds set out therein. However, those grounds are vague and generic, and include almost no specific matters which concern the Applicant’s case other than the most general bare assertions (e.g. Ground (B) “Torture Risk”). In reality, they did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision.  

9.  As can be seen from the TCAB Decision, the TCAB took into account all the evidence available and found that on the basis of the same, applying the correct legal principles in respect of all applicable grounds under the Unified Screening Mechanism, the Applicant’s allegations were insufficient to make out any of the applicable grounds [60-66].  In particular, the TCAB found that the Applicant’s evidence was vague, implausible, inconsistent (e.g. [54 d]) and ultimately incredible ([51-59], in particular [57]). The TCAB’s conclusion was no doubt correct, when the Applicant could not even identify the political party Aman was allegedly connected to.  

10.  There is a clear mismatch between the alleged grounds the Applicant raised and the TCAB’s actual ruling, which was largely based on the lack of credibility and probative value of the Applicant’s evidence, and thus failing to prove the centre piece of his story [62, 64, 66]. 

11.  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.  The Applicant’s intended challenge to the TCAB Decision is not reasonably arguable, and accordingly the application for leave to apply for judicial review is 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