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

HCAL 1706/2020

[2025] HKCFI 4241

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1706 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) Vincent Lung:

(1)  Form 86 be amended, naming the Torture Claims Appeal Board / Non-refoulement Claims Petition Office as the Putative Respondent and the Director of Immigration as the Putative Interested Party.

(2)  The application for leave to apply for judicial review out of time be dismissed.

Introduction

1.By a Form 86 filed on 24 August 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review against the decision by the Torture Claims Appeal Board (the “TCAB”) dated 24 September 2019 (the “TCAB Decision”).  He named the TCAB and the DOI both as proposed respondents.

2.I amend the Form 86 on my own motion to name only the TCAB as the putative respondent and the DOI as the putative interested party.

3.The Applicant requested for a hearing of this application and he attended the same.  When asked if he had anything to add he confirmed that he had not.

Background

4.By letter dated 12 August 2019, the Applicant informed the TCAB that he wanted to “go back to India as soon as possible.  It is safe…to go back”, and he wanted “to cancel all [his] non-refoulement claims…in Hong Kong”. 

5.TCAB requested on 3 September 2019 for clarification whether the Applicant was applying for a withdrawal.  The TCAB also stated that unless the Applicant should advise otherwise, it would be presumed that he understood the consequences of the proposed withdrawal.    It would appear that there was no response from the Applicant to this request for clarification.

6.The TCAB wrote again and decided on 24 September 2019 (being the subject TCAB Decision) as follows:

“The Board has considered your application to withdraw your appeal/petition having regard to all the available information placed before it. After consideration, the Board is satisfied that your application to withdraw the appeal/petition was freely sought, and that you understood the consequences of the withdrawal. The Board is also satisfied that there is good reason for your proposed withdrawal of the appeal/petition, namely, that you consider it safe for you to return to India. Under the circumstances, the Board has given direction that your appeal/petition is withdrawn…”

7.The Form 86 did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision.  However, in his affirmation in support, the Applicant stated that if he is now going back to his home country, his life will be in danger. He requested the Court to re-open his non-refoulement claim.

Discussion

8.The leave application operates as a filtering process and there is no requirement or expectation to give elaborate reasons for my decision: Re Zunariyah [2018] HKCA 14 at [23].  It is sufficient to state my observations after considering the TCAB Decision and the materials adduced by the Applicant.

9.I remind myself that in a judicial review, this court does not provide a further avenue of appeal. Though in non-refoulement cases an enhanced standard in scrutinizing the decision of the TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI are the primary decision-makers.  A finding of fact is exclusively within the realm of the TCAB, and this 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: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].  There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. 

10.In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (unreported, HCAL 21/2015, 22 December 2016) at [142], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

11.The TCAB was plainly right to have agreed to the Applicant’s own application to withdraw his non-refoulement claim.  The TCAB also rightly took into account whether there are good reasons for the withdrawal (that it was safe for the Applicant to return to India), and it was also satisfied that the withdrawal was freely sought.  The fact that there are (allegedly) subsequent change of circumstances does not render the TCAB Decision incorrect, unfair or irrational in the public law sense.

12.Accordingly, I do not see any errors of law, procedural unfairness or irrationality in the TCAB Decision.  The Applicant’s intended challenge to the TCAB Decision is not reasonably arguable, and accordingly the application for leave to apply for judicial review is dismissed.  I further note that the application was brought out of time, given that Order 53 rule 4(1) requires the leave application to be taken out within 3 months after the TCAB Decision was made.  Since I have held that the application is without merit, coupled with the fact that there is no explanation for the delay, I refuse to grant an extension of time.

Dated the 18^th day of September 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