DHALIWAL ANGREJ 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.   The Form 86 be amended by naming the Director of Immigration as the interested party.

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

Observations for the Applicant:

Introduction

1.   By a Form 86 filed on 13 April 2022 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against the Decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 9 March 2022 (the “Board’s Decision”).

2.   In the Affirmation in support of the Leave Application (the “Affirmation”), the Applicant exhibited a copy of the Board’s Decision.

3.  In the Form, the Applicant named the Board as the interested party.  I will amend the Form on my own motion to name the Director of Immigration (the “Director”) as the putative interested party instead.

4.  The Applicant requested for an oral hearing which took place on 29 January 2026 (the “Hearing”).  At the Hearing, the Applicant only said the he wishes the Court to reconsider the matter and come to a fair decision.

Background

5.  The Applicant’s background, the basis of his claim and the arguments he advanced had been set out in detail in the Board’s Decision, and it is not necessary for me to repeat the same here.  The hyperlink to the Board’s Decision is included below[1] for reference.

Discussion

6.  In the Form, the Applicant raised various grounds in support of his Leave Application.  I will summarise them below:

a.   The Board’s Decision was unreasonable or irrational in the public law sense, or was a result of procedural errors or unfairness;

b.   The Board had unlawfully fettered its discretion in refusing the Applicant’s appeal;

c.   The Board had failed to meet the greater care and duty owed to the Applicant as a self-represented party;

d.   The Board had acted in a procedurally unfair manner in dealing with the Applicant’s appeal;

e.   In dismissing the applicant’s appeal, there is no indication that the Board interacted with the facts of the Applicant’s claim, conducted any analysis of the supported documents or turned his mine to the ground under the consideration of the risk of violation of the Application’s right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383) (the “BOR 2 Risk”);

f.   The Board significantly relied on the source of news which is not officially recognised, or is simply hearsay;

g.   The Board had relied on some cases which are outdated considering the dramatic changes.  The lack of credible source of information has resulted in the Board making groundless speculations.   

7.  The relevant legal principles are well established.  The Court’s role in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases, the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board.  Assessment of evidence, country of origin information (COI) materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director).  The Court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board: see Nupur Mst v Director of Immigration [2018] HKCA 524 at para 14.  There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: see Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. 

8.  Having considered all the relevant materials before me, I do not consider the Applicant’s intended challenge against the Board’s Decision to be reasonably arguable with any realistic prospect of success.

9.  I have reviewed the Board’s Decision in detail.  The Board had fully considered the Applicant’s situation, including his evidence and his grounds for challenging the Director’s decision in refusing his claim for non-refoulment protection.  On the facts, the Board found that the Applicant had no genuine fear about Gela taking his life or to seriously harm him: see the Board’s Decision paras 69-76.  The Board considered that the authorities would provide the required protection to the Applicant: see the Board’s Decision para 78. In addition, the Board considered that there were internal relocation options available to the Applicant: see the Board’s Decision para 79, 94-99.  The Board considered BOR 2 Risk to be irrelevant to the Applicant’s case, as the Applicant’s alleged fear does not concern capital punishment: see the Board’s Decision paras 16, 51.  Taking the above into account, the Board found that the Applicant would not face any Persecution Risk, BOR 3 Risk or Torture Risk[2] if he returns to India and rejected the Applicant’s appeal: see the Board’s Decision paras 82-100.  I do not consider there to be any error of law, procedural unfairness or irrationality in the Board’s Decision.

10.  With respect to the Applicant’s complaint in paragraphs 6 (a), (b) and (d) above, I do not consider the complaints to be valid for the reasons explained in the preceding paragraph.

11.  With respect to paragraph 6 (c), the Board had given the Applicant sufficient opportunity to present his case at the hearing before the Board, and the Applicant had given evidence before the Board: see the Board’s Decision paras 43.

12.  With respect to paragraph 6 (e), as explained in paragraph 9 above, the Board is entitled to consider the BOR 2 Risk to be irrelevant as the Applicant’s alleged fear does not arise from any risk of capital punishment.  In any event, given the Board’s factual finding that the Applicant has failed to show that he held any genuine fear that he would be seriously harmed or killed by Gela, the Applicant’s claim would have failed under the BOR 2 Risk assessment anyway.

13.  As for paragraphs 6 (f) and (g), the Applicant failed to identify the alleged “news” or “cases” which were outdated.  These grounds cannot assist the Applicant in the Leave Application.

14.  Leave application of this sort is meant to be a filtering process and this Court is not expected to give elaborated reasons for its decision: see Re Zunariyah [2018] HKCA 14 at para 23.  I have considered all the relevant materials in reaching the present decision.

Conclusion

15.  For the reasons stated above, I will dismiss the Leave 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