Kuldip Singh v. Torture Claims Appeal Board

HCAL 3881/2019

[2025] HKCFI 1045

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3881 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 or counsel in open court;

Order by Deputy High Court Judge Michael WONG:

1.   On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board” and the name of the putative interested party be amended to “Director of Immigration”.

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

Observations for the applicant:

The Leave Application

1.By way of Form 86 dated 30 December 2019, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board ("the Board") dated 11 December 2019 (“the Board's Decision”).  The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003881_2019_files/the_Board's_Decision.pdf

2.The Board decided that the applicant did not make out his claims for non-refoulement protection on any of the applicable grounds under the Unified Screening Mechanism (“the USM”) and confirmed the decision of the Director of Immigration (“the Director”) dated 18 May 2018 accordingly.

Amendments

3.In Form 86, the applicant named both the Board and the Director as the putative respondents when the Director should just be the putative interested party.  Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board” and the name of the putative interested party is amended to “Director of Immigration”.

The applicant’s case

4.The applicant’s case (as detailed in the Board’s Decision) can be briefly summarised as follows:-

(1)   The applicant is a male national of India born on 15 June 1976 and raised in Talwandi Fattu Village, Shaheed Bhagat Singh Nagar District, Punjab State.  He had 10 years of education up to Senior Secondary School.  He worked as a carpenter in India and Dubai.  He also worked as a farmer on his father’s land during the years when he was working as a carpenter in India.

(2)   The applicant came to Hong Kong on 25 June 2011, exited on 29 June 2011 and re-entered as a visitor on 30 June 2011.  He was permitted to stay until 14 July 2011, but he overstayed and was arrested by the Hong Kong police on 28 November 2011.  He was referred to the Immigration Department on the following day.

(3)   The applicant claimed that a man named Joginder (or Jatinder), who was involved in a land dispute with him and his brother, would harm or kill him if he were to return to India.

(4)   The applicant lodged a claim under Article 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“the CAT Claim”) on 1 December 2011.  The Immigration Department rejected the CAT Claim on 27 June 2012, but the applicant did not file any appeal/petition against that refusal.

(5)   Instead, the applicant made further claims on 20 April 2018 under the USM after its introduction.

(6)   The Director rejected the applicant’s further claims under the USM on 18 May 2018 and the applicant filed an appeal against that decision on 28 May 2018.  As aforesaid, the Director’s decision was confirmed by the Board’s Decision.

Grounds for judicial review

5.The applicant is required to identify clearly the grounds for his intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

6.However, the applicant did not advance any ground for his intended judicial review in Form 86 nor in his supporting affirmation dated 30 December 2019.  He merely stated in his affirmation that he would like to “reject and aside [sic] the decision made by immigration department” and “they disregard the danger and threats I face in my country shold [sic] I be deported”.

Discussion

7.The role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

8.In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be a reasonably arguable claim which enjoyed realistic prospects of success.

9.The applicant did not advance any specific ground for the intended judicial review, but seemed to say that the Immigration Department disregarded the danger and threats he would face in his country should he be deported back to India.  Without the applicant raising any specific ground, it is difficult for this court to entertain the Leave Application.  However, for the sake of completeness, this court will proceed to examine and scrutinize the Board’s decision for any error of law, procedural unfairness and irregularities.

10.The Board held an oral hearing on 26 September 2019 assisted by an interpreter qualified in the Punjabi and English languages. Punjabi is the language spoken by the applicant and he requested the assistance of an Indian Punjabi interpreter in the Notice of Appeal filed with the Board on 28 May 2018.  The applicant appeared at the hearing but claimed that he was feeling dizzy and had high blood pressure.  The Adjudicator decided to cancel the hearing and advised the applicant that the hearing would be rescheduled if he could provide a medical certificate which indicated that he was not in a fit state to give evidence.

11.The applicant submitted a medical certificate to the Board after the September hearing. Though the certificate did not indicate that he was unfit to give evidence on 26 September 2019, the Board still rescheduled the hearing to 15 November 2019, and the applicant appeared in person on that day.  Again, an interpreter qualified in the Punjabi and English languages was present.

12.The Board carefully analyzed the hearing bundle and correctly identified the determinative issues of the appeal.  The hearing and the whole non-refoulement proceedings were conducted with the assistance of a qualified interpreter.  The applicant was able to understand the questions of the Board and to answer them in his mother tongue with the assistance of the interpreter.  The Board questioned the applicant on the matters giving rise to his claims and invited him to clarify the multiple inconsistencies and contradictions in his written submissions and his oral evidence.  The Board was minded to apply a high standard of fairness in assessing the claims.  Yet, the applicant failed to convince the Board that his feared threat was real, as there were many substantial inconsistencies and contradictions in his evidence.  Thus, the Board concluded that the applicant’s claims were made up.

13.The finding of facts was solely within the ambit of the Board.  This court finds nothing wrong in the way the Board reached its conclusion based on the evidence available to the Board.

14.The Board also re-assessed the applicant’s claim on all the applicable grounds under the USM, namely:-

a.  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance;

b.  risk of violation of right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance; and

c.  risk of persecution with reference to the non-refoulement principles under Article 33 of the 1951 Convention Relating to the Status of Refugees  and its 1967 Protocol.

15.Although the Board did not mention about the risk of torture under Part VIIC of the Immigration Ordinance, it was unnecessary to consider the same as the Immigration Department had already considered the CAT Claim previously and there was no appeal/petition against that refusal.

16.After due consideration of the law and the evidence as presented by the applicant, the Board found the applicant dishonest and there was no reliable evidence to say that he suffered serious ill-treatment or serious harm.  The Board concluded that the applicant’s vague and bare story was totally unsatisfactory and he was not entitled to non-refoulement protection under any of the aforesaid applicable grounds.  

17.Thus, it is untrue that the Board had disregarded the danger and threats the applicant faced in his country should he be deported.

18.Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof.  The Board also correctly identified the issues and observed a very high standard of fairness.  This court could detect no error of law, procedural unfairness or irrationality in the Board’s Decision.

19.The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.  Thus, the intended judicial review has no realistic prospects of success at all, and the Leave Application must be dismissed.

Conclusion

20.For reasons aforesaid, the Leave Application is dismissed.

Dated the 18^thday of March 2025

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