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

HCAL 3646/2019

[2025] HKCFI 1383

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3646 of 2019

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.  Form 86 be amended, naming only the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office and the Director of Immigration as the Putative Respondent and the Putative Interested Party respectively.

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

Observations for the Applicant:

Introduction

1.  By Form 86 (“Form 86”) filed on 6 December 2019, the Applicant applies for leave to apply for judicial review (“the Leave Application”) of the decision of the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (“the Board”) dated 20 November 2019 (“the Board’s Decision”) confirming the decision of the Director of Immigration (“the Director”) dated 6 March 2018 (“the Director’s Decision”), which rejected his non-refoulement claim on all applicable grounds (“the Grounds”) under the Unified Screening Mechanism (USM).

2.  On my own motion, I have amended Form 86, correctly naming only the Board and the Director as the proposed respondent and the proposed interested party respectively.

Background

3.  The Applicant’s personal background, the events alleged by him in support of his non-refoulement claim that he would be harmed or killed by his girlfriend’s brother in India, and the immigration and procedural history, etc. can be found in the Board’s Decision. It is not necessary for me to restate them, and where appropriate, reference can be made to the Board’s Decision, the hyperlink to which is included below[1]. Unless otherwise specified, I shall adopt the Board’s abbreviations and descriptions herein.

Discussion

4.  The Applicant’s intended challenge of the Board’s Decision is obviously not reasonably arguable with any realistic prospects of success: see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676 and leave should be refused. The requirement for leave to apply for judicial review operates to filter out unarguable challenges: see section 21K(3) of the High Court Ordinance, Cap. 4 and Order 53 rule 3(1) of the Rules of the High Court, Cap. 4A.

5.  The assessment of evidence, COI materials, risk of harm, state protection and viability of internal relocation were primarily within the province of the Board. I acknowledge the seriousness of the issues at hand and have considered the decision of the Board with vigorous examination and anxious scrutiny, applying an enhanced standard: see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

6.  The Board rejected the Applicant’s case after finding that (i) he was not in a relationship with a Sikh girl, either prior to his departure for Oman or after his return to India, (ii) he was not assaulted or threatened by her brother, (iii) he had not fled India fearing that his girlfriend’s brother would kill him, (iv) his girlfriend’s brother did not continue to threaten him or his family after he came to Hong Kong, (v) his brother’ death was not due to a deliberate act carried out by someone at the behest of his girlfriend’s brother, his brother was not killed deliberately at all, and the death was not related in any way to him, and (vi) he was not at risk of harm from his girlfriend’s brother should he return (see §69 of the Board’s Decision).

7.  Based on these findings of fact and the application of the relevant law and legal principles, the Board was not satisfied that there was a real chance or a real risk that the Applicant would suffer harm, if he were to return to India then or in the reasonably foreseeable future. The Board accordingly dismissed the Applicant’s claim on the grounds of Persecution Risk (§71), Torture Risk (§§72-77), BOR 2 Risk (§§83-84), and BOR 3 Risk (§§78-82).

8.  The Applicant has been unable to show any errors of law committed by the Board, or that there was any procedural unfairness or irrationality in the Board’s Decision. He has failed to identify any grounds for judicial review in this case: see Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015 (22 December 2016) at §142.

9.  He has also completely failed to meet the required standard of providing the Court with all relevant information and adequate assistance in the papers filed for the filtering process to be properly performed. There is little use for him to express his ‘disagreement’ with the Board’s Decision in his supporting affirmation, hoping that the Court may step in to adjudicate the matter afresh in the absence of any valid public law grounds. An applicant for leave is obligated to make full and frank disclosure of not only all material facts known to him but also the potential legal answers to his claims: see Re Leung Kwok Hung, HCAL 83/2012 (28 September 2012) at §35. The fact that he acts in person does not relieve him of such duty nor provide answer for his non-compliance.

10.  As has been repeatedly emphasized in similar cases, the Court’s role in a judicial review is not to provide a further avenue of appeal. Unless there are sufficient public law errors or grounds, the Court should not usurp the role of the Board or intervene by way of judicial review: see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.

Conclusion

11.  For the reasons above, I make an order that Form 86 be amended as described and the Leave Application 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