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

HCAL 656/2020

[2025] HKCFI 3623

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 656 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 the Applicant being absent in open court

Order by Deputy High Court Judge (Non-refoulement Claims) YW Hew:

The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.The Applicant is a citizen of India. By a Form 86 dated and filed on 15 April 2020 (“Form 86”), the Applicant sought leave to commence a judicial review regarding a decision the Torture Claims Appeal Board (“TCAB”)/Non-Refoulement Claims Petition Office (“NRCPO”) dated 13 December 2019 (“the TCAB Decision”)[1]. The TCAB Decision was exhibited to his supporting affirmation, also dated and filed on 15 April 2020 (“the Affirmation”). I will use the abbreviations and definitions from the TCAB Decision unless otherwise specified herein.

2.The Form 86 is accompanied by a supporting affirmation also dated and filed on 15 April 2020 (“the Affirmation”), which says that as the Applicant is not satisfied by “the decision of immigration”, he wants the court to address his case as a higher authority.

3.The Applicant sought an oral hearing of his application, but did not appear at such. I have hence dealt with his application on the papers.

Background

4.The Applicant’s background and case as to the incidents underlying his claim for non‑refoulement relief, and the immigration and procedural history leading up to the TCAB Decision, are set out in the latter decision. I will not repeat them but, in essence:

a.  The Applicant claimed for non-refoulement protection on the grounds of Torture Risk[2], BOR 2 Risk[3], BOR 3 Risk[4], and Persecution Risk[5]. The basis of his claims was that he would be at risk of being harmed, ill-treated, or killed by his uncle (“Uncle”);

b.  The Applicant had the benefit of legal representation during the assessment of his claim by and before the Director of Immigration (“Director”). His claim was rejected by the Director in a decision dated 19 October 2018 (“Director’s Decision”); and

c.  The Applicant appealed/petitioned to the TCAB/NRCPO, which held a hearing on 12 November 2019 (“TCAB Hearing”).

5.The TCAB Decision was subsequently handed down, in which the TCAB/NRCPO rejected his claim for non-refoulement on all of the claimed bases and confirmed the Director’s Decision.

Legal Principles

6.An applicant, even one acting in person, is required to identify the grounds of judicial review clearly and succinctly in the Form 86, and to fully and frankly disclose all material facts and potential legal answers (Ho Loy & Another v Director of Environmental Protection, unrep. HCAL 21/2015, 22 December 2016, Chow J. (as he was then) at §142; Leung Kwok Hung, unrep., HCAL 83/2012, 28 September 2013, Lam J. (as he was then) at §35; Begum Khadija [2018] HKCA 571; Khan Kamran, [2020] HKCA 380).

7.It is trite that judicial review is not a further avenue of appeal, and that the Court should not usurp the role of the TCAB/NRCPO which is (and together with the Director are) the primary decision‑makers. The assessment of evidence, COI materials, and credibility, risk of harm, state protection and viability of internal relocation are primarily within the province of the TCAB/NRCPO and the Director, which are entitled to make evaluations based on the evidence available and to decide the weight to be given to them. While the Court will adopt an enhanced standard in scrutinising a decision of the TCAB/NRCPO due to the seriousness of the issue at hand, 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 TCAB/NRCPO (Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; Nupur Mst v Director of Immigration [2018] HKCA 524; Re Kartini [2019] HKCA 1022; Re Rupinder Singh [2021] HKCA 886).

8.In order for me to give leave for judicial review, I have to be satisfied that there is an intended ground of review which is reasonably arguable, which is one that enjoys a realistic prospect of success (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676). As a leave application of this sort is meant to be a filtering process, I am not expected to give elaborate reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23).

9.Given RHC O. 53 r. 4(1) and s. 21K(6) High Court Ordinance (CAP. 4A), where (as in this case) an Applicant applies for leave to apply for judicial review more than 3 months after the TCAB Decision:

a.  The failure to apply within 3 months constitutes “undue delay”. To justify an extension of time in which to apply for leave, the Applicant must show “good reason” to extend time. In deciding this, certain factors that are likely to be significant are (i) the length of the delay (ii) the explanation for the delay (iii) the merits of the substantive application[6] (iv) prejudice, and (v) whether the application raises questions of general public importance;

b.  Where the court considers that there is no good reason for extending the period, it will refuse leave to apply for judicial review. The refusal of an extension of time is part and parcel of a refusal to grant leave to apply. It is not the case that the court refuses the extension of time as a discrete decision and then makes no decision on the question of leave to apply for judicial review, treating this as a separate matter entirely;

c.  If the court is satisfied that there is good reason for extending the period, it does not follow that leave to apply for judicial review will automatically be given. While the court might grant leave, it retains a discretion to refuse to do so and the existence of a good reason is only one facet of the question, others including sufficiency of interest and the need to satisfy the arguability test. Leave may also be refused on the basis that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration; and

d.  Even if leave to apply is granted, the issue of undue delay on the part of the applicant may be raised again at the substantive hearing of the judicial review application. That is a separate consideration of whether relief should be refused on the basis that the court thinks that relief would be likely to cause substantial hardship or prejudice to the rights of another or be detrimental to good administration.

See AW v Director of Immigration & anor. [2016] 2 HKC 393 (CA) (at §§23 to 36), Thomas Lai [2014] 6 HKC 1 (at §§43 to 45 as also cited in AW, supra), and H v Director of Immigration (2020) 23 HKCFAR 248 at §§17-22, 36-44 citing inter alia both AW and Thomas Lai. See also Re Hariatiningsih [2021] HKCFI 1194 at §§12-13, 16-19 citing the aforesaid, upheld in [2022] HKCA 1321.

Relevant parties and decisions in relation to which leave is sought

10.The contents of the Form 86 appear to have had the input of someone with legal training as it is typewritten, sets out certain remedies sought including certiorari and remission, identifies the TCAB Decision as the only decision in respect of which relief is sought, and names the TCAB/NRCPO as the putative respondents and the Director as the putative interested party.

11.The Director’s Decision is not named in the Form 86 as a decision in respect of which relief is sought. While the Form 86 sets out certain Grounds on which Relief is sought (“Grounds”) (which I will set out below) some of which advance complaints against the Director, and I note the contents of the Affirmation, I did and do not understand the Applicant to be seeking leave to commence a judicial review of the Director’s Decision. However, if and insofar as he apparently seeks such leave, that application stands only to be rejected and I do so given the existence and implications of the two-tier system, and the lack of exceptional circumstances justifying such an application (Moshsin Ali [2018] HKCA 549; Yeni Setyawati v Torture Claims Appeal Board [2019] HKCA 1310).

Discussion

12.Although the Applicant did not bring to my attention any explanation for the delay in filing the application for leave, and there is not even a request for an extension of time to make the application in the Form 86, I am prepared to approach the matter of delay on the basis, and in the Applicant’s favour, that there has been a delay of some 2 weeks, and that such is only of a relatively minor nature given the unusual circumstances at the time[7].

13.The Grounds are as follows:

a.  “I believe that the Director of Immigration and the Adjudicator of Appeal Board reached the decision wrongly in assessing my Non-refoulement Claims.” (Ground 1)

b.  “From the Director’s Decision, it is evident that the director has failed to appreciate or give the proper importance or weightage to the presence of state Acquiescence in my case. This has indeed led to an unfair outcome of rejecting my non-refoulement claim. I was tortured at the Behest and the state law enforcement agencies as well as those in the high ups of political circles. It is submitted that the state would be rendered liable to me by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence.” (Ground 2)

c.  “The Adjudicator acted unreasonable and was procedurally unfair by placing too much reliance on Country of Origin Information [(“COI”)] but failed to take my personal background and experience into account. Further, I submit that although the Director had listed relevant COIs which support the aversions that the police in my country would not be able to protect. The Director failed to consider or give enough weightage to that evidence and ruled otherwise.” (Ground 3)

d.  “I submit that the Director has failed to take such argument into account or that the Director has failed to give enough weight to such argument before reaching the Decision. This was a clean case of unfair attitude shown by the Director which in itself is enough to render his Decision void. In Fact, the corruption and incompetency of the administration in my country is still a very serious problem. Various human rights organization has compiled reports on the matter which stated testament to my assertions.” (Ground 4)

e.  “Further, the director has failed to attain the high standard of fairness required by the Wednesbury test in the decision with the arguments put forward above. As such, the decision of the director should be considered unreasonable in the scope of Public Law.” (Ground 5)

f.  “The Adjudicator was procedurally improper and/or unfair when assessing whether to accept or not to accept explanations provided by me, and unreasonably requires me to response (sic) to questions that I was not in a position to offer any response.” (Ground 6)

g.  “The Adjudicator made a ruling to dismiss my appeal/petition in the [TCAB/NRCPO] based on findings which the Adjudicator ought to allow the appeal/petition, and thus the Decision was irrational.” (Ground 7)

14.Given the matters and authorities in Paragraph 11 above, when considering the Grounds I shall ignore the portions that relate to the Director and/or the Director’s Decision. The result is that Grounds 2, 4, and 5 are therefore irrelevant, not reasonably arguable, and are dismissed.

15.The remaining portions of the Grounds are entirely inadequate, being merely generic, vague, and unparticularised assertions using selected keywords and phrases without reference to any underlying facts or matters establishing why, how, and where each of those complaints arise in relation to the TCAB Decision.

16.Nevertheless, given the seriousness of the issues at hand and the Grounds and complaints raised, I have considered the TCAB Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard and bearing in mind the need for a high standard of fairness.

17.The TCAB Decision begins starts by setting out the Applicant’s procedural and immigration history, the 4 relevant legal bases of risk in question, and the nature of the TCAB Hearing (Paragraphs 1 to 5). It then went on to outline how the TCAB Hearing was conducted including with the assistance of a qualified interpreter, identified that documents it had before it, the Applicant’s general factual case, and outlined how and what evidence was adduced by the Applicant at the TCAB Hearing (Paragraphs 6 to 10).

18.This was followed by a section on the relevant approach to considering the evidence and the Applicant’s case, including matters as to burden and standard of proof, sufficiency of materials, hearsay, past events, behaviour detrimental to credibility, COI, onus, future risk of harm, and the level of severity (Paragraphs 11 to 32).

19.The TCAB/NRCPO then assessed the risk of harm, concluding that the land dispute with the Uncle was a personal family matter and (with reference to the evidence before it including the Applicant’s acceptance at the TCAB Hearing that there was no political or state involvement in relation to the land dispute) that he was a non-state actor, citing relevant authorities and principles (Paragraphs 33 to 37). It then went on to consider the Applicant’s claim and make relevant findings of fact. In particular, while it accepted that he had been involved in a land dispute with his Uncle and been attacked on one occasion in 2013, it found (giving reasons with reference to the evidence before it), that there was no or no reliable evidence (and hence it did not accept) that the Uncle would harm or kill the Applicant if he returned to India, that the Applicant faced risk throughout India, that the Applicant suffered injuries to the required severity, and that India was unwilling to help the Applicant for a Convention (in relation to Persecution Risk) reason. It was mentioned that these findings would be applied in considering the individual grounds under the USM (Paragraphs 38 to 43).

20.The decision-maker then found that Persecution Risk was not established for salient reasons such as there being no Convention reason, state protection, and given the lack of evidence of any current risk to the Applicant (Paragraphs 44 to 65). BOR 3 and BOR 2 Risk were also dismissed on the lack of evidence that he would be personally at risk of such treatment if refouled (Paragraphs 66 to 74). Torture Risk was also rejected with regard to the evidence and acquiescence (Paragraphs 75 to 82). Finally, and while there was no need to do so, on the evidence the TCAB/NRCPO considered that the Applicant could internally relocate to Mumbai or Delhi (Paragraphs 83 to 87). Accordingly, the Applicant had not made out any of the 4 legal bases to his claims for non-refoulement, the TCAB/NRCPO rejected his appeal, and the Director’s Decision was confirmed (Paragraphs 88 to 92).

21.I do not, from my aforesaid examination and scrutiny, see that the Applicant has any reasonably arguable case in relation to the remaining Grounds, or indeed that there was procedural unfairness (bearing in mind the need for a high standard of fairness), an error of law, and/or irrationality/failure to meet the enhanced Wednesbury test that vitiates the TCAB Decision. This is especially so as to the assessment, reasoning, and findings regarding the risk and extent of harm, extent of injury, state protection, and consequently as to Torture Risk, Persecution Risk, BOR 3 Risk, BOR 2 Risk [8], and internal relocation, which are all matters primarily within the province of the decision-making body and as to which adequate reasons were given.

22.Further, and purely for the sake of completeness:

a.  The remaining portion of Ground 1 is a complaint on the merits and does not raise any reasonably arguable ground of judicial review. The same goes for any suggestion – if so made – that the court being a “higher authority” should re-assess his case on the merits. This is because the role of the Court in a judicial review is not to provide a further avenue of appeal, and judicial review is not an avenue for revisiting the assessment in the hope that the court may consider the matter afresh in the absence of any legal error, which issue I have covered above (see the authorities cited in Paragraph Error! Reference source not found.); and

b.  The Applicant has failed to identify the specific facts and matters relevant to the alleged public law errors contained within what remains of Grounds 3 and 6, or of irrationality as alleged in Ground 7. In any event I see no such specific procedural unfairness or irrationality as alleged in the TCAB Decision. Rather, it is clear from the TCAB Decision that the Applicant’s personal background, experience, and explanations were fairly considered and evaluated by the decision-maker, who gave salient reasons for findings that logically supported and led to the dismissal of the appeal/petition.

23.I am not therefore not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success. I also do not see any question of general public importance raised by the application which is likely to be resolved by the courts in any event. Given the lack of any reasonably arguable grounds, I also see no prejudice to the Applicant if the application were not allowed to proceed, whereas allowing it to proceed would clearly be to the detriment of public administration and would needlessly prejudice the putative Respondent. I therefore see no good reason to extend time for leave to apply for judicial review, and do not consider that I should grant such an extension. I hence refuse to grant such an extension and to grant leave to apply for judicial review.

Conclusion

24.In the circumstances I have ordered that the application for leave to apply for judicial review be dismissed.

Dated the 21^st day of August 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