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

HCAL 732/2020

[2025] HKCFI 2910

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 732 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 (Non-Refoulement Claims) Lewis Law:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.By a Form 86 filed on 22 April 2020 (“Form 86”), the Applicant sought leave for judicial review of the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the TCAB”) made on 30 March 2020 (“the TCAB Decision”).  A copy of the TCAB Decision can be viewed by the following hyperlink[1].

2.The TCAB Decision was made pursuant to a petition/appeal from a decision of the Director of Immigration (“the DI”) dated 28 June 2018 not to re-open the Applicant’s non-refoulement claim (“the DI Decision”). The Form 86 identifies the TCAB as a putative interested party and the Immigration Department as a putative respondent.  I amended the Form 86 on my own motion to name the TCAB as the putative respondent and the DI as the putative interested party instead.

3.The Applicant appeared before me at an oral hearing of his leave application.  He said he has nothing to add in support of the leave application.

4.The Applicant’s non-refoulement claim was deemed withdrawn due to his failure to return a non-refoulement claim form (“NCF”) to the DI within time.  Section 37Y(2) of the Immigration Ordinance (“IO”) states that a claimant must return the completed NCF within 28 days after a written request is given to him.  Under s.37ZG(3) of the IO, a torture claim treated as withdrawn may be re-opened if the claimant provides sufficient evidence in writing that “due to circumstances beyond the [claimant’s] control”,the claimant had not been able to return a completed NCF as required under section 37Y(2) of the IO.

5.As recorded in the DI Decision and the TCAB Decision, the DI served the NCF on the Applicant in person on 19 January 2018.  On the same date, the Duty Lawyer Service (“DLS”) commenced acting for the Applicant.  The DI sent a reminder to the DLS reminding the Applicant to return the NCF by 9 March 2018, but he did not.  On 9 March 2018,the DLS informed the DI that they no longer acted for the Applicant as he had failed to provide any instructions to the DLS.  By the DI Decision, DI refused to re-open the Applicant’s claim.   

6.The TCAB assessed afresh whether the claim should be re-opened.  It identified the requirements under section 37ZG of the IO (paragraph 9 of the TCAB Decision), noted the theoretical difference between the applicability of the IO to torture claims and the applicability of paragraph 24 of the Practice and Procedural Guide of the Administrative Non-Refoulement Claims Petition Scheme (4^th Ed, 12 September 2016) (“the Petition Guide”) to claims in relation to other relevant grounds (paragraphs 11-13 thereof)[2], and applied its discretion under the IO and the Petition Guide accordingly.

7.The TCAB found that there was a valid withdrawal.  The TCAB noted that the Applicant made two appointments with the DLS for the purpose of filling in the NCF; the Applicant claimed that he was ill on the first occasion and in police custody on the second occasion.  The TCAB went on to find that, even if these explanations were the truth, there had been no evidence of effort having been made to arrange a third meeting with the DLS to prepare the NCF or to at least seek an extension of time with the DI.  The TCAB was not satisfied that the Applicant failed to return the NCF due to circumstances beyond his control.  Having regard to all relevant circumstances, the TCAB refused to re-open the Applicant’s non-refoulement claim.

8.I have reviewed the TCAB Decision vigorously.  In my view, the TCAB has identified the correct legal principles, carefully evaluated the Applicant’s assertions as to why his claim should be re-opened and properly exercised its discretion.  Given the factual conclusion reached by the TCAB, it was plainly within its power to refuse to re-open the claim.  All in all, I do not see any errors of law, procedural unfairness or irrationality in the TCAB Decision.

9.The leave application is accordingly dismissed.

Dated the 9^th day of July 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