SANDHU SATNAM SINGH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 123/2025

[2025] HKCFI 2282

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 123 of 2025

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Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

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

Leave to apply for Judicial Review be refused.

Observation for the Applicant:

Introduction

1.  This is an application by Mr Sandhu Satnam Singh (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 24 December 2024 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 28 October 2024 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

Background of the Applicant and the Claim

2.  The Applicant is an Indian born on 18 February 1987 in Ferozepur District, Punjab State, India.  He received 12 years of education and had 18 years of work experience.

3.  The Applicant claimed that members of the Aam Adami Party (“AAP”) and the head of his home village (“RS”) would harm or kill him because he supported the opposing political party, Waris Punjab De (“WPD”).

4.  The Applicant claimed that there were about 5,000 people in his home village, most of whom supported the AAP.  The Applicant promoted the WPD in his home village in May 2024 and he was asked by RS to stop promoting the WPD and join the AAP instead.  He refused and continued to promote WPD.

5.  The Applicant said that WPD won the election in his area on 20 May 2024. The Applicant claimed that he was harassed by RS and the AAP supporters on two occasions in May 2024 (“Incidents”).  His home was vandalized and he was threatened with death.

6.  Because of the Incidents, the Applicant fled to Haryana state and his family fled to Zira Town.  Upon the suggestion of his uncle, he first came to Hong Kong on 15 June 2024 to seek protection.  He returned to India after he was refused permission to enter Hong Kong.  He came to Hong Kong on 6 September 2024 again and was refused permission to enter again.  He lodged the Claim on the same day.

7.  The Applicant was not injured in the Incidents and nothing had happened to him while he was in Haryana.  His family had never been harmed and had no problem in Zira Town.

8.  The Director assessed the Claim on the following grounds under the unified screening mechanism (“USM”):

(a)  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (“Ordinance” and “torture risk”);

(b)  risk of violation of right to life as a non-derogable and absolute right under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“BOR” and “BOR 2 risk”);

(c)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of the BOR (“BOR 3 risk”); and

(d)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

9.  By the DOI Decision, the Director refused the Claim.  The Applicant later filed an appeal/petition to the Board (“Appeal”).  By the Board’s Decision, the Board affirmed the DOI Decision.  The Board rejected and dismissed the Appeal.

10.  On 9 January 2025, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the Board’s Decision.  The Applicant filed his supporting affirmation on the same day (“Supporting Affirmation”).  In the Form 86, the Applicant named the Board as the proposed respondent and the Director as the interested party.

Legal principles applicable to judicial review

11.  In a judicial review, the court does not step into the shoes of the decision makers.

12.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“The role of the Court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI [i.e. country of origin information] materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The 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 Board: see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.”

13.  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 reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

14.  In the Form 86, the Applicant put forward the following grounds for his intended judicial review:

(1)  the Director and the Board reached their decisions wrongly and their decisions were not reasonable or fair;

(2)  the Board placed too much reliance on country of origin information (“COI”) but failed to take the Applicant’s personal background and experience into account.  The Director failed to consider or give enough weight to COI in support of the Applicant’s case that the police in his country was unable to protect him and corruption and incompetency of administration in his country was still a very serious problem;

(3)  the Director failed to apply the high standard of fairness and the DOI Decision was Wednesbury unreasonable;

(4)  the Director failed to appreciate or give proper importance or weight to the presence of state acquiescence and the failure of the state in providing reasonable protection to its citizens under the duty of due diligence;

(5)  the Board was procedurally improper and/or unfair when assessing the Applicant’s evidence and unreasonably required the Applicant to respond to questions that he was not in a position to respond;

(6)  the Board failed to take into account the nexus of political parties and the official corruption in his country making the persecution against him effectively persecution by the state; and

(7)  the Board’s Decision was irrational as the Board should have allowed the Appeal.

15.  In the Supporting Affirmation, the Applicant exhibited the Board’s Decision but did not put forward any ground for his intended judicial review.

16.  In the Form 86, the Applicant raised various complaints against the Director.  This is an application for leave for judicial review of the Board’s Decision, not the DOI Decision.  The hearing of the Appeal before the Board was de novo in nature (§6 of the Board’s Decision).  Error (if any) in the DOI Decision will not constitute grounds for judicial review of the Board’s Decision.  

17.  Furthermore, the grounds raised by the Applicant in the Form 86 were bare assertions without particulars or supporting evidence. 

18.  He complained of the Board failing to take his personal background and experience into account in considering the COI.  The Board had set out in some details the Applicant’s claim in §§8-16 of the Board’s Decision and set out in §§20-28 of the Board’s Decision the Applicant’s evidence given at the hearing before the Board.  The Board had no doubt considered the personal background and experience of the Applicant when the Board considered the Appeal.

19.  The Applicant attended the court hearing on 3 April 2025 (“Court Hearing”).  At the Court Hearing, he was unable to identify which part of his personal background and experience had been overlooked by the Board.  He only asserted that there was much corruption in India and most political parties took side with the government. 

20.  The Board rejected the Appeal because the Board found that the Applicant’s evidence was incredible and that he had fabricated the alleged threats for the Claim (§38 of the Board’s Decision).  The issues of state protection and state acquiescence were not in issue.

21.  The Applicant complained that the Board had required him to respond to questions that he was not in a position to respond.  The Board had set out in §§20-28 of the Board’s Decision the Applicant’s evidence given at the hearing before the Board which included questions put to the Applicant by the Board.

22.  The Applicant did not specify in the Form 86 or the Supporting Affirmation which questions put to him were inappropriate.  He was also unable to specify at the Court Hearing what inappropriate questions had been put to him by the Board at the hearing before the Board. 

23.  Without particulars and supporting evidence, the aforesaid grounds raised by the Applicant in the Form 86 were not reasonably arguable in his intended judicial review.

24.  At the Court Hearing, the Applicant was also unable to identify any error of law, procedural unfairness or irrationality in the Board’s Decision.

25.  The Board set out its analysis on the credibility of the Applicant in §§29-36 of the Board’s Decision.  The Board noted that the Applicant’s testimony was inconsistent with his case before the Director.  He knew little about the party he allegedly supported (i.e. the WPD).  The Board concluded that the Applicant’s claim to have been politically active in his village was not credible.

26.  The Board did not regard the Applicant’s claims about his involvement in politics during the May 2024 election in India to be credible and found his claim to have been active in politics in his village to be untrue.  The Board also found the claim that the Applicant was assaulted and threatened by RS and the AAP supporters to be untrue.  The Board found that the Applicant claimed that RS had threatened his life should he return, and that RS and the AAP would be willing and able to carry out this threat and that the Applicant would be unable to avoid them should he return to India had all been fabricated for the purposes of the Claim.  Accordingly, the Board found that there was no basis for the Applicant’s claim that he would be harmed by RS and the AAP supporters if he were to return to India.

27.  The Board found that the Applicant had not established substantial grounds for concluding that there was a real risk that he would suffer serious harm at the hands of RS and the AAP supporters or anyone else should he return to India.    

28.  As pointed out in the Nupur Mst case (supra), assessment of evidence, COI materials and risk of harm were primarily within the province of the Board.  The court would not intervene by way of judicial review unless there were errors of law or procedural unfairness or irrationality in the decision of the Board.

29.  In disputing the Board's assessment on evidence, risk of harm and COI materials, the Applicant sought to challenge the findings of fact of the Board which is not permissible in a judicial review unless in making such findings there were errors of law or procedural unfairness or irrationality.  I find none in this case.

30.  Having rigorously examined the Board’s Decision with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the relevant grounds for seeking non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness.

31.  In §§40-47 of the Board’s Decision, the Board considered the Claim under each of the applicable grounds under the USM.  The Board found that the Applicant had failed to show that he had a well-founded fear of the persecution risk.  The Board also found that the Applicant had not shown strong or substantial grounds for believing that there was a risk of violation of his right to life under BOR 2 should he return to India.  The Board found that the Applicant had not shown that there was a real risk or substantial grounds for believing that he would be subjected to the BOR 3 risk if refouled.  The Board also found that elements in Section 37U of the Ordinance for claiming torture risk had not been satisfied in the Applicant’s case. 

32.  It was on such basis that the Board found that the Applicant had failed to prove his entitlement to non-refoulement protection.  These were findings of fact which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such findings involved error of law, procedural unfairness or irrationality.  In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings for the Claim.  The Board’s Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  The proposed judicial review is not reasonably arguable and has no realistic prospects of success.

Conclusion

33.  In the premise and having considered the Board’s Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review.

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