Mukar Sandeep Singh v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1300/2020

[2025] HKCFI 976

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1300 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;

Order by Deputy High Court Judge Levy:

1.   The Form 86 is amended on the court’s own motion.

2.   Leave to the applicant to withdraw the Leave Application.

3.   The Leave Application be dismissed.

Observation for the Applicant:

Introduction

1.By prescribed Form 86 filed on 14 June 2020, the applicant applied for leave to apply for judicial review (“Leave Application”) of the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“Board”) dated 25 May 2020 (“Board’s Decision”).  The Board had dismissed the applicant’s appeal against the decisions (“Director’s Decisions”) dated 16 December 2013 and 31 July 2018 of the Director of Immigration (“Director”) who refused the applicant’s claim for non-refoulement protection.

2.As no request for a hearing was made, this court will determine the Leave Applicant without a hearing: O.53, r.3 (3) of the Rules of the High Court.

3.In Form 86, the applicant named the Board and the Director together as the proposed respondents as well as the interested parties.   As the Board should have been the proper proposed respondent and the Director the proper proposed interested party, Form 86 will be amended accordingly on the court’s own motion.

Background

4.The background as taken from the Director’s Decisions and the Board’s Decision can be briefly stated as follows.

5.The applicant came from India.  On 10 October 2012, the applicant came to Hong Kong as a visitor. Upon the expiry on 25 November 2012 of his permission to stay, the applicant overstayed.  On 10 December 2012, the applicant was convicted of and sentenced to 6 months’ imprisonment for offences in relation to his overstaying and in possession of a false instrument. On 2 January 2013, the applicant lodged a non-refoulement application, relying on the ground of risk of torture^[1], which the Director rejected on 16 December 2013. On 20 December 2013, the applicant lodged another non-refoulment application relying on the grounds under BOR 2 risk^[2], BOR 3 risk^[3] and persecution risk^[4] under the USM.[5]  The claim was based on a fear of being harmed or killed by the leader of Shiromani Akali Dal after he changed allegiance to anther political party.

6.In the Directors’ Decisions, the Director decided against the applicant’s claim on all applicable grounds.  The Director considered that the asserted risks were low.  After having considered the country of origin information (“COI”), the Director found that both state protection and the option of internal relocation were reasonably available.  Hence, the appeal to the Board.

7.After having considered the oral evidence received at the hearing on 12 September 2019 before the Board, the Board did not believe in the applicant’s account of events, and rejected his claims.  The COI was also taken into account when the Board found that internal relocation and state protection were available.

Legal principles applicable to judicial review

8.As the Courts have repeatedly stated, determination of the merits of a non-refoulement claim is essentially a matter for the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them.  A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error.  A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

Discussion and conclusion

9.The applicant’s Form 86 did not contain any grounds for seeking relief. In his supporting affirmation of the same date, he broadly stated that his life was still in danger.  There were no evidence or identification of errors in support of the intended challenge.

10.Having rigorously examined the Director’s and Board’s Decision with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles relating to the grounds mentioned above; correctly identified the issues, and observed a very high standard of fairness.  I am satisfied that there were no errors of law or procedural unfairness in the Board’s Decision.  In the absence of any specific grounds in support of the Leave Application, I find that it was perfectly open to the Board to come to its conclusion that the applicant failed to discharge his burden of proving the asserted fears and risks.

11.For these reasons, I am not satisfied that the Leave Application is reasonably arguable with realistic prospects of success such that would enable this court to grant leave: see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.  The Leave Application is accordingly dismissed.

Withdrawal of Leave Application

12.On 12 February 2025, the court received a letter from the Immigration Department enclosing the applicant’s handwritten letter to apply to withdraw the Leave Application, stating that the problem in his home country is solved and that it is safe for him to return to his country.

13.Apart from the application to withdraw the Leave Application, there is nothing outstanding in this action.  In the circumstances, I should grant leave to the applicant to withdraw the Leave Application, and hereby order the dismissal of the Leave Application: see Re Manik Md Mahamudun Nabi [2022] HKCA 471.

Orders

14.The Form 86 is amended on the court’s own motion.

15.Leave to the applicant to withdraw the Leave Application.

16.The Leave Application be dismissed.

Dated the 21^st day 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