DHARAMBIR SINGH v. TORTURE CLAIMS APPEAL BOARD

HCAL 625/2025

[2026] HKCFI 1336

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 625 OF 2025

  Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

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

Observations for the Applicant:

1.  The Applicant is a 25-year-old national of India who had previously overstayed in Hong Kong as a visitor in September 2022 and was subsequently arrested and repatriated to India in May 2023 again sneaked back into Hong Kong some 8 months later on 26 January 2024, and was arrested by police on 2 February 2024. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim for protection on the basis that if he returned to India he would be harmed or killed by his father’s enemies over their land dispute in his home district. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Pakhour, Punjab, India. After leaving school he worked as a domestic servant in his home village to make his living.

3.  In 2017 his father was having some serious dispute with the then head of his home village named Pardhan over the sale of some farmland in the village that led to death threats being made by Pardhan and his associates against the Applicant being his father’s only son, whereupon his father then made a report to the police over the threats, but the matter subsequently died down after Pardhan left the country in 2018 for Canada to receive medical treatments.

4.  However, in late 2021 Pardhan returned to the home village to again raise the land dispute with the Applicant’s father which led to further death threats being made against the Applicant, and after one incident in June 2022 when some associates of Pardhan came to the Applicant’s home and fired gun shots outside to threaten him, the Applicant was advised by his father to leave the country to save his life, which the Applicant did in September 2022 when he came to Hong Kong and subsequently overstayed, and upon his arrest by the police he then raised a non-refoulement claim for protection but which he later withdrew after being told by his family in India that his father had settled the land dispute by paying a sum of money to Pardhan, whereupon the Applicant was repatriated back to India on 24 May 2023. 

5.  Upon returning to India and as he was still concerned about his own safety, the Applicant did not return to his home village and instead stayed with some relatives in Chandigarh, but one day in November 2023 he was attacked by some associates of Pardhan in the street with wooden sticks that he suffered cuts and bruises all over his body and was subsequently taken by some passers-by to a hospital for medical treatments.

6.  Upon discharge from hospital the Applicant felt that it was not safe to remain in India, and so in December 2023 he departed for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he again raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 8 July 2024 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

7.  By a Notice of Decision dated 28 November 2024 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”).

8.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his father’s enemies Pardhan and associates upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of Pardhan and associates to seriously harm or kill him other than angry words and empty threats, that it was a private land dispute between his father and Pardhan only but which had already been settled between them with money payment, and in any event in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in India with a large population of 1.4 billion people spread across a vast territory of more than 3.2 million square kilometers that it would not be unduly harsh for the Applicant as an able-bodied young adult with working experience to move to other areas of the country away from his home district in large cities such as Mumbai or Kolkata where it would be difficult if not impossible for Pardhan or his associates to locate him.

9.  On 4 December 2024 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 27 January 2025 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board, and as his evidence could not be completed on that day the hearing was then adjourned to 11 February 2025 when he however refused to give any further evidence or to answer any further questions from the Adjudicator despite being advised to do so due to the vagueness and inconsistencies found in his earlier evidence. On 4 March 2025 his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  In its decision[1] the Board found material inconsistencies and discrepancies in the Applicant’s evidence with vagueness and contradictions and lacking in significant details but which he subsequently refused to explain or clarify on the second day of the hearing despite being advised by the Adjudicator to do so that the Board doubted and rejected his claim of fear of harm from his father’s alleged enemies upon his return to India as wholly unreliable and concluded that the Applicant had fabricated his evidence for non-refoulement purpose and that he had failed to establish that he would face a genuine and substantial risk of being subjected to serious harm or ill-treatment of any sort upon his return to India that his claim for non-refoulement protection failed on all applicable grounds.    

11.  On 12 March 2025 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or his supporting affirmation of the same date to which he just attached a copy of the decision but without putting forth any proper ground for his intended challenge. As such, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge of the Board’s decision.

12.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

13.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in its decision in the absence of further clarifications or explanations from him when he declined to do so on the 2^nd day of his appeal hearing before the Board despite being advised by the Adjudicator to do so, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

14.  Furthermore, the fact is that it has also been correctly established by the Director in his decision that the risk of harm in the Applicant’s claim even if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, a decision also agreed and confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.                

15.  In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

16.  Moreover, the Applicant has recently on 2 January 2026 in writing requested to withdraw his application as his issue in his home country has been resolved that he now wants to return to India as soon as possible.

17.  For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation of no more issue for him to return to his home country, I accordingly dismiss his leave application.

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