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HCAL 3357/2019
[2025] HKCFI 3941
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3357 OF 2019
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BETWEEN
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Paritpal Singh |
Applicant |
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and |
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Torture Claims Appeal Board |
1st Putative |
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Respondent |
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Director of Immigration |
2nd Putative |
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Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
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:
1. On this court’s own motion, the name of the 2nd putative respondent be amended to “Director of Immigration”, the name of the putative interested party be amended to “Director of Immigration” and the decisions in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 31 October 2019 and Director of Immigration’s decision dated 13 July 2018 for the 1st and 2nd putative respondents respectively”.
2. The applicant’s application for leave to apply for judicial review in respect of the Director of Immigration’s decision dated 13 July 2018 be dismissed.
3. The applicant’s application for leave to apply for judicial review in respect of the Torture Claims Appeal Board’s decision dated 31 October 2019 be dismissed.
Observations for the applicant:
The Leave Application
1. By way of Form 86 dated and filed on 11 November 2019, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of two decisions, namely:-
(1) “Decision Made on 13 JULY 2018 by the immigration Department”; and
(2) “Decision Made on 31 October 2019 by the torture claim Appeal Board”.
2. The Torture Claims Appeal Board (“the Board”) made a decision dated 31 October 2019 (“the Board’s Decision”) in respect of the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 13 July 2018 (“the Director’s Decision”). The Board’s Decision can be viewed in the following hyperlink:
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003357_2019_files/the_Board's_Decision.pdf
3. It is clear that the first decision above-mentioned is the Director’s Decision, and the second decision is the Board’s Decision.
4. The Board found that the applicant’s appeal/petition failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”) and confirmed the Director’s Decision, which rejected the applicant’s non-refoulement claim.
Amendments
5. In Form 86, apart from naming the Board as the 1st putative respondent, the applicant also named “Immigration Department HK SAR” as the 2nd putative respondent, when the Director should be named as the 2nd putative respondent.
6. The applicant also wrongly named both the Board and Immigration Department as the proposed interested parties, when only the Director should be so named.
7. Thus, on this court’s own motion, the name of the 2nd putative respondent and the name of the putative interested party are both amended to “Director of Immigration”.
8. As aforesaid, the decisions in respect of which relief is sought should be the Board’s Decision and the Director’s Decision for the 1st and 2nd putative respondents respectively. Thus, the decisions are so amended on this court’s own motion.
The intended judicial review in respect of the Director’s Decision
9. As held by the Court of Appeal in Re Moshsin Ali [2018] HKCA 549, only the Board’s Decision is reviewable by judicial process and not the Director’s Decision. There are established statutory procedures of appeal from the Director to the Board and the applicant had invoked those procedures. The Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review.
10. Thus, the applicant’s application for leave to apply for judicial review in respect of the Director’s Decision is dismissed. This court will further consider the Leave Application in respect of the Board’s Decision only.
The applicant’s case
11. 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 Decision, which can be viewed in the hyperlink above.
12. In sum, the applicant claimed for non-refoulement protection because he could not return to India for fear of being harmed or killed by his uncle named DS, as his uncle wanted his father to transfer the land inherited from his late grandfather to him. Further, he accidentally killed a girl by running his motorcycle into her while he was running away from DS. The dead girl’s family was looking for him and had threatened to kill him.
Oral hearing
13. The applicant requested for an oral hearing and his case was heard on 12 June 2025.
14. At the hearing, when this court asked the applicant to give his grounds for the intended judicial review, the applicant merely said that his family dispute had not been solved and he had presented everything to the Board. Apart from this, he had nothing further to say.
Grounds for judicial review
15. 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).
16. The applicant did not advance any specific ground for his intended judicial review in Form 86, nor in his supporting affirmation dated 11 November 2019. He merely stated in his supporting affirmation the following:-
“(I) I am currently a torture claimed I am INDIAN
(II) I come to HONG KONG to save my life from DARSHAN SINGH
III I was tortured mentally by them and was manged to escaped to HONG KONG From being tortured physically and to be killed
(IV) Problem Still Pending Forced Return will endanger and risk Death”
17. Thus, the applicant was essentially reiterating his alleged danger if refouled to India.
Discussion
18. 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).
19. What the applicant stated in his supporting affirmation cannot amount to any valid ground for the intended judicial review. The applicant was merely repeating his alleged danger if refouled. However, for the sake of completeness, this court will proceed to examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness, and irregularities.
20. In assessing the appeal by the applicant, the Board held an oral hearing on 11 September 2019. The applicant was present and was given the chance to present his case to the Board in person.
21. The Board found the applicant’s evidence about the land dispute with his uncle DS credible. The Board accepted that the applicant might have sustained some injuries during the conflicts that occurred between the families over the land. However, the Board did not find this to be serious or life-threatening. The land in dispute was in the possession of the applicant’s father. After his father had given half of the land to DS, the perceived risk from DS had been diminished to a point where there was no longer a real risk that he would cause harm of any kind to the applicant.
22. As to the accident that caused the death of a young girl, which, on the applicant’s own evidence, was the main reason for his fear of returning to India, the Board accepted most of his evidence. The Board accepted that the accident did happen, and in the light of the situation in India, the Board also accepted that the parents of the girl did not report the accident and the death of their daughter to the police, but wanted to take revenge on the applicant by harming or even killing him.
23. The Board further considered that had the accident and the death of the girl been reported to the police, the applicant might be charged and prosecuted with a serious offence of causing death. However, the Board did not accept that the applicant would face a real risk of serious harm or death during the course of such a prosecution. The applicant would be able to put forward his defence, as reliable country of origin information (“COI”) showed that the applicant would have access to a fair trial in India.
24. The Board also analyzed the availability of state protection to the applicant. COI suggested that the Indian police service was affected by under-resourcing and corruption in certain areas and levels. The Board also accepted the applicant’s evidence that the dead girl’s father was a member of the police service. Thus, the Board was not satisfied that the applicant would be able to rely on the police in his home area to protect him against the harm he might face from the girl’s family.
25. However, the Board considered internal relocation was viable for the applicant. The Board noted that the applicant had stayed in his sister’s home after the accident and could stay away from harm during the period. The fact that the applicant was able to depart India with his passport without any difficulty indicated that he was not wanted by the police or under a warrant of arrest. Freedom of movement across India was permitted. The Board was mindful that the applicant had no physical or mental disability except for some knee problems due to his sport and that he could not lift anything heavy.
26. Having regard to the applicant’s particular circumstances and his work experience in farming, the Board considered that it would be viable for the applicant to relocate to large cities or regional areas in India, including Delhi, Kolkata, Hyderabad or Mumbai. The Board found it realistic and reasonable to conclude that the applicant would be able to find paid employment of some kind, or create his own employment, to enable him to live without undue hardship in one of a number of areas or cities in India. The girl’s parents would not have the financial means or necessarily the intention or desire to pursue the applicant in another city or location within India for the purpose of inflicting serious harm or death upon him.
27. The Board concluded that by virtue of the viability and reasonableness of the applicant’s internal relocation, the applicant would not face a real risk of harm from the girl’s parents, or from anyone else associated with her, or from anyone else generally should he return to India and relocate to another area away from his home area.
28. Thus, the Board had considered the applicant’s situation thoroughly, but concluded that there was no reason for the applicant to fear any kind of harm from those who might be motivated to harm him if he would relocate to another part of India.
29. The finding of facts was solely within the ambit of the Board. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.
30. Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.
31. 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 failed to establish such a claim and hence leave must be refused.
Conclusion
32. For reasons aforesaid, the Leave Application is dismissed in respect of both the Director’s Decision and the Board’s Decision.
Dated the 2nd day of September 2025
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( Irene LEE )
for Registrar, High Court
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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
Notes for the applicant:
If leave has been granted, the applicant or his solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent/Handed to the applicant/the applicant’s solicitors
on: 2 September 2025
Applicant’s ref. no:
Nil |
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Sent/Handed to the putative respondent / the putative respondent’s solicitors / such putative interested parties as may be directed by the Court / the putative interested parties’ solicitors on:
2 September 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 12636/18/7/386/IN2518
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 2681/18 (formerly RBCZ 14002/15) (PSO)
Department of Justice,
Senior Assistant Law Officers
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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