LUTHRA CHARANJIT SINGH v. TORTURE CLAIMS APPEAL BOARD

HCAL 116/2020

[2025] HKCFI 1864

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 116 OF 2020

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

	consideration of the documents only; or
	consideration of the documents and oral submissions by the applicant in open court;

1.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board” and the name of the putative interested party be amended to “Director of Immigration”.

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

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated and filed on 10 January 2020, 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 2 January 2020 (“the Board's Decision”). The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000116_2020_files/the_Board's_Decision.pdf

2.  The Board found that the applicant was unable to establish a real risk pertinent to any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board dismissed the applicant’s petition against the decision of the Director of Immigration (“the Director”) dated 14 September 2018 and confirmed the Director’s said decision.

3.  The applicant had previously lodged a torture claim under Part VIIC of the Immigration Ordinance (“the Torture Claim”), which was rejected by the Director on 13 May 2013. His appeal against the said decision was dismissed by the Board on 22 October 2013. Thus, the Board’s Decision, which is the subject of the Leave Application, only dealt with the remaining 3 grounds under the USM namely BOR 2 Risk[1], BOR 3 Risk[2] and Persecution Risk[3].

Amendments

4.  In Form 86, the applicant wrongly named “Andrew Ma Adjudicator of the Non-refoulement Claims Petition Office” as the putative respondent and the Board as the putative interested party. Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board” and the name of the putative interested party is amended to “Director of Immigration”.

The applicant’s case

5.  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.

6.  In sum, the applicant claimed for non-refoulement protection because he feared being harmed and even killed by the family members of his then lover, Simran, upon his return to India, as the applicant is from a lower caste and they wanted him to leave Simran. However, while the applicant was in Hong Kong, he came to know that Simran married to a man of the same caste in 2013 and the applicant is no longer in love of Simran.

Oral hearing

7.  The applicant requested for an oral hearing of the Leave Application. His case was heard on 1 April 2025, but when this court asked the applicant what grounds he had for the Leave Application, he simply told this court that everything was there and he had nothing to add.

Grounds for judicial review

8.  The applicant is required to identify clearly the grounds for his intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016). However, the applicant did not advance any ground for his intended judicial review in Form 86, nor in his supporting affirmation dated 10 January 2020. As aforesaid, the applicant did not even bother to offer any ground for the judicial review when asked at the oral hearing.

Discussion

9.  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).

10.  In assessing the applicant’s appeal, the Board held an oral hearing on 12 September 2019. The Board found significant differences between the information given by the applicant to the Director and his testimony to the Board. After due consideration of the law and the evidence as presented by the applicant, the Board had great reservations on the applicant’s credibility and rejected both of the two versions of his case. The Board had serious doubt on the alleged incidents of love affairs, the elopement, the threats and assaults, and the flight. The Board found that the family members of Simran had no more motive to cause harm to the applicant.

11.  Although the Torture Claim was not re-assessed by the Board in the Board’s Decision, it is unnecessary to do so as the Torture Claim had been appealed to and decided by the Board previously.

12.  In assessing the availability of state protection and the viability for the applicant’s internal relocation, the Board had referred to the then most updated country of origin information for the applicant’s country from extensive sources. The Board concluded that the applicant failed to demonstrate ill-treatment or serious harm, but in any event, state protection was available and internal relocation was viable. The applicant did not report against the family members of Simran for the violence inflicted on him only because he believed that their family was of a higher caste and had connections with the police. The Board found that the state could offer effective protection to the applicant if he were to return to India.

13.  Further, the Board found that the applicant had vast experience as a sale person of garment and he would have no difficulty in finding a reasonable job in any major cities of India. Despite the wealth and caste level of Simran’s family, it would be unrealistic to expect that they would mobilize such resources to conduct a nation-wide search for the applicant.

14.  The finding of facts is within the sole ambit of the Board. This court finds no errors of the Board in reaching its decision based on all the evidence before it.

15.  By failing to advance any ground for the intended judicial review, the applicant plainly failed to identify any errors of law, procedural unfairness or irrationality in the Board’s Decision.

16.  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 error 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.

17.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be a reasonably arguable claim which enjoyed 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

18.  For reasons aforesaid, the Leave Application is dismissed.

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