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

HCAL 1862/2024

[2025] HKCFI 1147

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1862 of 2024

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge Reuden Lai:

Leave to apply for Judicial Review be refused.

Observation for the Applicant:

Introduction

1.This is an application by Mr Shamsher Singh (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 26 September 2024 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 18 July 2024 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

Background of the Applicant and the Claim

2.The Applicant is an Indian. He was born on 2 March 1990 in Punjab, India. He had received 4 years of education and had about 18 years of working experience.

3.The Applicant claimed that his neighbour in India (“Neighbour”) wanted to harm or kill him because of their political difference. The Applicant claimed that the Neighbour wanted him to vote for and support the Akali Dal Party (“ADP”) in an election in 2022 but he refused, claiming that he would support the opposing Congress Party (“CP”) instead. The Neighbour claimed that the Applicant’s support for the CP would hurt the ADP’s performance in the election. The Neighbour attacked the Applicant and also threatened to kill him. The Applicant fled from his home out of fear for his life.

4.He came to Hong Kong illegally on 22 April 2024 and lodged the Claim on 22 May 2024.

5.The Director assessed the Claim on the following grounds under the unified screening mechanism (“USM”), namely:

(a)  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (“torture risk”);

(b)  risk of violation of right to life as a non-derogable and absolute right under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“BOR”) (“BOR 2 risk”);

(c)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of the BOR (“BOR 3 risk”); and

(d)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

6.By the DOI Decision, the Director refused the Claim. The Applicant later filed an appeal/petition to the Board (“Appeal”). By the Board’s Decision, the Board affirmed the DOI Decision. The Board rejected and dismissed the Appeal.

7.On 18 October 2024, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the DOI Decision and the Board’s Decision. In the Form 86, the Applicant named both the Director and the Board as the proposed respondents.

8.The Applicant also filed his supporting affirmation on 18 October 2024 (“Supporting Affirmation”). In the Supporting Affirmation, the Applicant clarified at §2 that the decision under challenge in these proceedings was the Board’s Decision. I shall proceed on that basis.

9.The Applicant had already utilized the channel of appealing the DOI Decision to the Board. The Board treated the Appeal as a de novo hearing or a rehearing. The Applicant may not have the second bite of the cherry and seek to challenge the DOI Decision twice in the name of judicial review. (Re: Saqlain Muhammad [2018] HKCFI 409 at §6) I will in any event dismiss the Applicant’s application for leave for judicial review of the DOI Decision against the Director.

Legal principles applicable to judicial review

10.In a judicial review, the court does not step into the shoes of the decision makers.

11.In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“The role of the Court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing 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 and COI [i.e. country of origin information] materials and 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 or procedural unfairness or irrationality in the decision of the Board: 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.”

12.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 reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

13.In the Form 86, the Applicant raised the following grounds for his intended judicial review:

(1)  the Applicant was not legally represented at the Appeal. His case should be considered with high standards of fairness;

(2)  the Director failed to properly assess the Applicant’s situation and wrongly concluded that internal relocation would be viable; and

(3)  the Director would have reached a different conclusion if he had considered all the material facts.

14.In the Supporting Affirmation, the Applicant stated that the Claim involved matters of life and limb and it was important for him to receive full and proper legal advice on the preparation of this application.

15.The Applicant attended the court hearing of 25 February 2025 (“Court Hearing”) and confirmed that he was assisted by the Duty Lawyer Service (“DLS”) in the screening interview with the Immigration Officer but was not legally represented in the Appeal.

16.The DOI Decision was issued on 18 July 2024 while the hearing for the Appeal before the Board was held on 12 September 2024. The Applicant had reasonable time (i.e. about 2 months’ time) to seek legal assistance for the Appeal. From the date of the Board’s Decision (i.e. 26 September 2024) to the Court Hearing, the Applicant had another 5 months to seek legal assistance for his intended judicial review application.

17.All non-refoulement protection claims will be treated with high standards of fairness irrespective of whether the claimant is legally represented. However, high standards of fairness do not prescribe that a non-refoulement claimant has absolute right to free legal representation at all stages of the process. (Re Zunariyah [2018] HKCA 14 and Vu Hong Diep v Torture Claims Appeal Board/non-Refoulement Claims Petition Office [2023] HKCA 1378) The Applicant already had the benefit of legal representation in presenting his case to the Director.

18.The DLS is available for proceedings before the Board and legal aid is available for judicial review proceedings though both are subject to a merit test. The Applicant might apply to the DLS or the Director of Legal Aid (“DLA”), as the case may be, for legal assistance. If his case was found to be meritorious, legal assistance would be granted to him by the DLS or the DLA. As pointed out above, ample time had been allowed for the Applicant to make applications for legal assistance. It is not the Applicant’s case that he had applied to the DLS for legal assistance but the DLS had not properly applied the merit test in refusing his application. If he chose not to make the applications or his applications were refused for want of merits, he still had reasonable time to engage private lawyers, if he so wished. In the circumstances of this case, I see no merits in this proposed ground for judicial review.

19.The Applicant disagreed to the Director’s assessment on viability of internal relocation for him.

20.As pointed out in the Nupur Mst case (supra), assessment of evidence, country of origin information materials and viability of internal relocation were primarily within the province of the Director and the Board. The court would not intervene by way of judicial review unless there were errors of law or procedural unfairness or irrationality in their decisions. Furthermore, this is an application for leave for judicial review of the Board’s Decision. Hearing of the Appeal before the Board was de novo. As the Board pointed out in §5 of the Board’s Decision, “on an appeal to the Board, all questions of fact and law are at large. The Board must come to its own conclusion on all issues of credibility, facts and law and must come to its own conclusion on the relevant Country of Origin Information (“COI”).” Errors (if any) made by the Director in the DOI Decision will not constitute grounds for judicial review of the Board’s Decision.

21.The grounds advanced by the Applicant in the Form 86 and the Supporting Affirmation for his intended judicial review are not reasonably arguable.

22.The Board noted that the Applicant did not adduce support for many material aspects of his claim. (§§14, 20, 59 and 62 of the Board’s Decision) The Board further noted that there was no actual bodily harm inflicted on the Applicant over the various incidents and threats. (§35 of the Board’s Decision)

23.The Applicant testified at the hearing before the Board. For reasons set out in §§70-72 of the Board’s Decision, the Board found that the Applicant’s claim of past threats and fear from the Neighbour incredible and unreliable.

24.The Board further found that even if the Applicant’s claim were accepted to be true, the nature and low intensity of the perceived threats from the Neighbour and other ADP supporters were indicative of a small future risk of harm.

25.Lastly, the Board found that state protection was available (§85 of the Board’s Decision) and internal relocation would be viable (§138 of the Board’s Decision).

26.Having rigorously examined the Board’s Decision with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the relevant grounds under the USM for seeking non-refoulement protection; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness.

27.At the Court Hearing, the Applicant was unable to identify any errors of law, procedural unfairness or irrationality in the Board’s Decision.

28.In §§95-134 of the Board’s Decision, the Board considered the Claim under each of the applicable grounds under the USM. The Board found that there were no substantial grounds to believe that the Applicant faced a real risk of being subjected to the torture risk or the BOR 3 risk if he returned to India. The Board did not accept that the Applicant had a genuine and well-founded fear of the persecution risk. The Board also found that there were no grounds to believe that the Applicant faced the BOR 2 risk. Reasonable state protection would also be available and internal relocation viable to the Applicant.

29.It was on such basis that the Board found that the Applicant had failed to prove his entitlement to non-refoulement protection. These are findings of fact which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such findings involved error of law, procedural unfairness or irrationality. In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board’s Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The proposed judicial review is not reasonably arguable and has no realistic prospects of success.

Conclusion

30.In the premise and having considered the Board’s Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review.

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