Sukhchain Singh v. Torture Claims Appeal Board
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HCAL 1948/2023 [2026] HKCFI 6019 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1948 OF 2023 BETWEEN
Application for leave to apply for judicial review NOTIFICATION of the Judge’s decision (Order 53, rule 3) Following:
Order by Deputy High Court Judge Michael WONG:
Observations for the applicant: The Leave Application 1.By way of Form 86 dated and filed on 30 October 2023, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 4 October 2023 (“the Board’s 2023 Decision”). The Board’s 2023 Decision can be viewed in the following hyperlink:- 2.The Board found that the applicant was not entitled to non-refoulement protection in Hong Kong on the any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board refused the applicant’s appeal/petition against the two decisions of the Director of Immigration (“the Director”) dated 26 August 2014 (“the Director’s 2014 Decision”) and 30 June 2017 (“the Director’s 2017 Decision”) respectively. The date of the Director’s 2017 Decision was mistakenly stated as 30 August 2018 in paragraph 84 of the Board’s 2023 Decision. 3.The Director’s 2014 Decision rejected the applicant’s non-refoulement claim on the grounds of Torture Risk[1], BOR 3 Risk[2] and Persecution Risk[3] under the USM. The Director’s 2017 Decision rejected the applicant’s non-refoulement claim on the ground of BOR 2 Risk[4] under the USM. By the Board’s 2023 Decision, the Board confirmed both the Director’s 2014 Decision and the Director’s 2017 Decision. Amendments 4.In Form 86, the applicant named the Board as the 1st putative respondent, the Director as the 2nd putative respondent and the Board as the putative interested party, but the applicant spelt the Board’s name wrong. 5.In fact, only the Board should be named as the putative respondent and the Director should be named as the putative interested party. 6.This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and the name of the putative interested party to “Director of Immigration”. Procedural history of the applicant’s non-refoulement claim 7.The applicant first appealed/petitioned to the Board against the Director’s 2014 Decision on 3 September 2014. However, the Notice of Appeal/Petition (“NOAP”) was invalid. On 19 September 2014, the applicant filed a valid NOAP, which was dated 13 September 2014. By way of the Board’s decision dated 21 September 2016 (“the Board’s 2016 Decision”), the Board confirmed the Director’s 2014 Decision. 8.On 31 May 2017, the Director wrote to the applicant and advised him that it was proposed to further consider his application for non-refoulement protection under BOR 2[5]. The applicant was invited to submit additional facts, if any, which he considered were relevant to his non-refoulement claim. 9.The applicant did not provide a response to the said letter from the Director. On 30 June 2017, the Director issued the Director’s 2017 Decision. 10.On 13 July 2017, the applicant filed a NOAP to the Board against the Director’s 2017 Decision. By way of the Board’s decision dated 30 August 2018 (“the Board’s 2018 Decision”), the Board confirmed the Director’s 2017 Decision. 11.On 19 September 2018, the applicant filed an application for leave to apply for judicial review (the Previous Leave Application”) against a decision of the Board dated 11 September 2018, which was however neither the date of the Board’s 2016 Decision nor the date of the Board’s 2018 Decision. Nevertheless, DHCJ Bruno Chan granted leave to the applicant to apply for judicial review in respect of both the Board’s 2016 Decision and the Board’s 2018 Decision on 2 September 2021 in the Previous Leave Application[6]. 12.On 25 April 2023, by consent of the parties, DHCJ Bruno Chan quashed the Board’s 2016 Decision and the Board’s 2018 Decision and remitted the applicant’s appeals/petitions against both the Director’s 2014 Decision and the Director’s 2017 Decision to the Board (differently constituted) for fresh determination. 13.After reconsideration of the applicant’s case by a differently constituted Board, the Board found that the applicant’s application for non-refoulement protection failed on all the applicable grounds under the USM and confirmed both the Director’s 2014 Decision and the Director’s 2017 Decision by the Board’s 2023 Decision. 14.The applicant was not satisfied with the Board’s 2023 Decision and made the Leave Application in respect of the same. The applicant’s case 15.It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s 2023 Decision, which can be viewed in the hyperlink above. 16.In sum, the applicant claimed for non-refoulement protection because if refouled to India, he would be harmed or killed by the cousin/brother, Mr Popal (“Popal”), of Manpreet Kaur, a young woman from a higher caste who was underage at the time, due to his relationship with her. The applicant claimed that Popal was a member of the Akali Dal and influential. The applicant also claimed that the police had filed false cases against him. Oral hearing 17.The applicant requested for an oral hearing and his case was heard on 22 October 2026. 18.The applicant confirmed that he was seeking leave to apply for judicial review of the Board’s 2023 Decision. When this court asked him for the grounds of his intended judicial review, the applicant replied that the information was the same, and he had been questioned and provided answers previously. 19.When this court asked the applicant what was wrong with the Board’s 2023 Decision, he said that he was not happy with the decision and that was the same thing. Grounds for judicial review 20.The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016). 21.The applicant did not advance any grounds for his intended judicial review in Form 86. 22.In his supporting affirmation dated 30 October 2023, the applicant stated that the affirmation was for leave to apply for judicial review for his non-refoulement claim decision against the Director of Immigration on “30-Aug-2018” (which was the date of the Board’s 2018 Decision), as well as the decision against the Adjudicator of the Board to dismiss his appeal on “4-OCT-2023” (which was the date of the Board’s 2023 Decision). 23.As aforesaid, at the oral hearing before this court, the applicant confirmed that he was seeking leave to apply for judicial review in respect of the Board’s 2023 Decision in the Leave Application. In respect of the grounds for the intended judicial review, he only said that the information was the same, and he had been questioned and provided answers previously. He added that he was not happy with the decision and that was the same thing. Discussion 24.First of all, the Board’s 2018 Decision had been quashed on 25 April 2023 as aforesaid. Thus, the Board’s 2018 Decision cannot be a subject matter of the Leave Application. Moreover, the applicant had confirmed at the oral hearing before this court that he was seeking leave to apply for judicial review regarding the Board’s 2023 Decision. Thus, this court will only consider the Leave Application in respect of the Board’s 2023 Decision. 25.What the applicant said at the oral hearing before this court in relation to the grounds for his intended judicial review, namely that the information was the same, he had been questioned and provided answers previously, he was not happy with the Board’s 2023 Decision, and that was the same thing, cannot amount to any valid grounds. 26.The applicant did not say why he was not happy with the Board’s 2023 Decision, or how the Board had erred in its assessment of his non-refoulement claims and/or his appeals/petitions against the Director’s 2014 Decision and the Director’s 2017 Decision. 27.The applicant’s danger arising from his problems in his home country had been re-assessed but rejected by the Board. If the applicant intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review unless there were errors of law, procedural unfairness or irrationality in the Board’s 2023 Decision. 28.The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness, or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524). 29.Thus, despite the fact that the applicant did not advance any valid ground for the intended judicial review, this court will scrutinize the Board’s 2023 Decision for any errors of law, procedural unfairness, or irrationality as aforesaid. 30.In re-assessing the appeal/petitions by the applicant, the Board (differently constituted) wrote to the applicant on 6 July 2023 requesting advice as to whether he would be legally represented, and the applicant was asked to advise the Board by 28 July 2023 (see paragraph 46 of the Board’s 2023 Decision). 31.On 3 August 2023, the applicant advised the Board that he had not found a lawyer and requested the Board to find him one, but the applicant was advised by the Board that the hearing scheduled for 6 September 2023 would proceed (see paragraph 47 of the Board’s 2023 Decision). 32.The applicant attended the Board’s hearing on 6 September 2023 as scheduled in person. At the commencement of the hearing, the Board discussed the issue of legal representation with the applicant. The Board advised him that there was no right to legal representation before the Board in relation to appeals against a decision of the Director. The Board also advised the applicant that the Board was confident he could have a fair hearing without legal representation as he would have sufficient opportunity to present his claims or any new information. The applicant indicated that he did not object to the hearing proceeding (see paragraph 49 of the Board’s 2023 Decision). 33.It is clear to this court that there was procedural unfairness in the way the Board handled the issue of legal representation for the applicant, as it was simply not right for the Board to advise the applicant that there was no right to legal representation before the Board in relation to appeals against a decision of the Director. All non-refoulement claimants are entitled to legal representation before the Board in their appeals/petitions against the Director’s decisions, except that it may not be for free. 34.It would not be procedurally unfair to the applicant if the Board was saying that the applicant was not entitled to “free” legal representation. The Court of Appeal has repeatedly emphasized that, as a matter of law, a non-refoulement claimant is not entitled to free legal representation at all stages of the process (see Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15; Re Tariq Farhan [2018] HKCA 17; and Re Lopchan Subash [2018] HKCA 37). 35.However, that was not what the Board was saying to the applicant. The Board had omitted the word “free” in its advice to the applicant, which made a huge difference. 36.In fact, before the hearing and upon the Board’s request, the applicant had indicated that he had not found a lawyer and requested the Board to find him one. This shows that the applicant did have the intention to engage a lawyer and had requested the Board to assist him in finding one. Instead of informing the applicant that it could not assist him to find a lawyer, the Board simply advised the applicant that the hearing would procced. 37.Thus, it is possible that the applicant might not know that there would be no lawyer for him at the hearing or that he needed to engage his own private lawyer for the hearing. It is also possible that the applicant could have been misled by the Board at the hearing when it gave the advice that he had no right to legal representation, and hence he did not object to the hearing proceeding because he was told that he could not have legal representation. In this court’s view, the way the Board handled the issue of legal representation was clearly procedurally unfair to the applicant. It is at least arguable that the applicant might have been misled by the Board with the wrong advice as aforesaid. 38.As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicant has an arguable case that he had suffered procedural unfairness by reason of the Board’s wrong advice and hence leave should be given to the applicant to proceed with the intended judicial review. Conclusion 39.For reasons aforesaid, leave is granted for the applicant to apply for judicial review in respect of the Board’s 2023 Decision. 40.The applicant is directed to issue an originating summons for the intended judicial review on or before 11 November 2026 pursuant to Order 53, rule 5(5) of the Rules of the High Court. Dated the 28th day of October 2026
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 [1] Risk of torture under Part VIIC of the Immigration Ordinance, Cap 115. [2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383. [3] Risk of persecution with reference to the non-refoulement principles under Article 33 of the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol. [4] Risk of violation of right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383. [5] Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383. [6] See Form CALL-1 of HCAL 1973/2018 [2021] HKCFI 2599 |
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