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

HCAL 1868/2020

[2025] HKCFI 4688

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1868 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) Martin Wong:

1.  The Applicant’s Form 86 be amended to name the TCAB as the putative respondent and the TCAB Decision dated 14 September 2020 as the decision sought to be reviewed; and

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

Observations for the Applicant:

Introduction

1.By a Form 86 filed on 18 September 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review of a decision dated “14/9/2020” by the “Immigration Department” which rejected his non-refoulement claim. He named the Immigration Department as the proposed respondent and the Director of Immigration (the “DOI”) as an interested party.

2.From the case record, there was a decision by the Torture Claims Appeal Board (the “TCAB”) dated 14 September 2020 (the “TCAB Decision”), which affirmed a decision by the DOI dated 26 August 2018 in refusing the Applicant’s non-refoulement protection claim.

3.I take it that the Applicant is seeking judicial review of the TCAB Decision and amended the Form 86 on my own motion accordingly, naming the TCAB as the putative respondent.

4.The Applicant requested for a hearing and he attended the same.

Background

5.The Applicant is a national of India. He seeks non-refoulement protection on the basis that he would be killed by his ex-wife’s family, who were connected to powerful political groups, because he had divorced her. His personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be assessed through a hyperlink[1], and I shall not repeat the same herein.

Discussion

6.In a judicial review, this court does not provide a further avenue of appeal. Though in non-refoulement case 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. 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, [14(1)]). There must be a reasonably arguable claim with a realistic prospect of success before leave for judicial review will be granted (Peter Po Fun Chan v Winnie Cheung & Anor (2007) 10 HKCFAR 676).

7.At the hearing before me, when asked if he had anything to add, he stated that his family member was still being tortured by his enemies and that his brother was attached a few times. However, he submitted no evidence in support of these allegations.

8.In his affirmation filed in support of this application, apart from stating that he “rejects” it, the Applicant did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision.

9.Looking at the TCAB Decision, the TCAB took into consideration the Applicant’s case and evidence, and all materials placed before it [5-15], including his testimony before the Board [16-34] and relevant COI [38], and after thoroughly analysing the same came to the finding that the Applicant’s allegations were not made out [35-44].

10.The TCAB then proceeded to analyse each of the four applicable grounds under the USM, bearing in mind the correct principles in respect of each, and came to conclude that none was made out [46-79].

11.I therefore do not see any error of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.

Conclusion

12.For the above reasons, I am not satisfied that this court should intervene by way of judicial review. I therefore dismiss the application.

Dated the 21^st day of October 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