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

HCAL 451/2020

[2025] HKCFI 1727

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 451 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.  The Leave Application be dismissed; and

3.  The hearing on 21 May 2025 be vacated

Observations for the Applicant:

Introduction

1.By prescribed Form 86 filed on 19 March 2000, 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 9 March 2020 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 29 January 2018 (“Director’s Decision”) rejecting the applicant's non-refoulement claim.  The Board’s Decision can be viewed at the following hyperlink:

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000451_2020_files/the_Board's_Decision.pdf

2.The applicant’s claim is based on a fear that if refouled, he would be harmed or killed by the family members of the applicant’s lover due to their approval of the applicant’s relationship with their daughter.  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 Form 86, the applicant named the Board and the adjudicator of the Board as the proposed respondents and did not name any interested party. As the Board should have been the proposed respondent and the Director proposed interested party, Form 86 will be amended accordingly on the court’s own motion.

4.As the applicant had requested for a hearing of the Leave Application, this court has fixed a hearing to be held on 21 May 2025.  The court on 22 April 2025 received the applicant’s hand-written letter to ask for the withdrawal of the Leave Application and the vacation of the hearing. On 25 April 2025, the applicant also filed an affirmation seeking for withdrawal. The reason is that he has applied for a dependent visa and has been granted and it is no longer necessary for him to seek non-refoulement protection.

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.

6.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. Apart from putting forward some general grounds in the Form 86 alleging procedural impropriety, unreasonableness and unfairness, the applicant gave no particulars in the Form 86 and provided no grounds at all in his supporting affirmation.

7.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 reliable witness and that his evidence in relation to the various aspects of his claims were not credible are findings of fact, which the court in a judicial review will not interfere with subject to there being any public law errors.

8.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.

Disposition

9.As stated above, the applicant wants to withdraw the Leave Application. I think it is appropriate to dismiss the Leave Application instead merely granting leave to withdraw: see Re Rini Artini [2020] HKCA 709.

10.In any event, for the reasons stated above, I also consider that 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

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

12.The Leave Application be dismissed.

13.The hearing on 21 May 2025 be vacated.

Dated the 2^nd day of May 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