Gurdip Singh v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
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HCAL 3866/2019 [2025] HKCFI 1390 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3866 of 2019
Application for Leave to Apply for Judicial Review Following:
Order by Deputy High Court Judge Levy:
Observations for the Applicant: Background 1.By prescribed Form 86 filed on 27 December 2019, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 2 December 2019 (“Board’s Decision”) dismissing the applicant’s appeal against a decision of the Director of Immigration (“Director”) dated 23 October 2018 rejecting the applicant’s non-refoulement claim based on all applicable grounds. The Board’s Decision is set out in the following hyperlink: - 2.The applicant’s claim based on a fear that if refouled, he would be harmed or killed by the Shiromani Akali Dal Party. The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them. Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision. 3.In the Form 86, the applicant named the Director as the proposed respondent and himself as the proposed interested party. As the Board should have been the proper proposed respondent and the Director the proper proposed interested party, the Form 86 will be amended accordingly on the court’s own motion. 4.As the applicant has not requested for an oral hearing, this court will dispose of the Leave Application on paper. Discussion 5.The leave application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[1] It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced. In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[2], and further to make full and frank disclosure of all material facts to be verified by an affidavit. However, the applicant has identified no such grounds in either the Form 86 or the supporting affirmation. 6.As the Courts have repeatedly stated, 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.[3] In the present case, the Board’s findings that that applicant was not a truthful witness, that he had fabricated or exaggerated some of his claims, that state protection and internal relocation, were reasonably available, are findings of fact, which the court in a judicial review will not interfere with subject to there being any public law errors. 7.Bearing in mind the enhanced standard that should be adopted in scrutinizing the decision of the Board, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a very high standard of fairness. The applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision, nor were such grounds identified in the Form 86. The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with any realistic prospects of success such that would enable this court to grant leave[4]. Orders 8.The Form 86 is amended on the court’s own motion. 9.The Leave Application be dismissed. Dated the 16th day of April 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 [1] Re Zunariyah [2018] HKCA 14 at §23. [2] Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015, 22 December 2016 at §142. [3] 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. [4] Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. | |||||||||||||||||||||||||||||||||||||
Cases cited in this judgment