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

HCAL 3895/2019

[2026] HKCFI 3322

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3895 of 2019

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.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 8 November 2019 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing his appeal against the Director’s Decision as described below.

2.  The applicant and the Director of Immigration (“the Director”) are respectively legally represented. By consent, the parties submit their written submissions and the Court will deal with the application on the papers without an oral hearing.

The applicant

3.  The applicant is a national of India. He is an illegal immigrant. He lodged a non-refoulement claim with the Director on the basis that, if refouled, he will be harmed or killed by members of his own family and by people of Sikhism in India because he refused to apply to extend the dependent visa for his wife, who was the widow of his deceased brother, Paramjeet Singh, and because he had converted to Christianity from Sikhism in Hong Kong.

4.  Details of his claim are set out in the Board’s Decision. See hyperlink. https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003895_2019_files/the_Board's_Decision.pdf

The Director’s Decision

5.  On 10 May 2004, the applicant made an application for torture claim. His claim was rejected. He appealed to the Board, which dismissed his appeal on 26 March 2013.

6.  The Director considered the applicant’s claim in relation to the following risks (“the applicable risks”):

a.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

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

c.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

7.  By way of Notice of Decision dated 26 September 2018 (“the Director’s Decision”), the Director dismissed the applicant’s claim on all applicable risks because it was unsubstantiated.

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board. On 11 February 2019 and 12 September 2019, the Board conducted an oral hearing for his appeal. Both the applicant and the Director were legally represented. He had given oral evidence before the Board.

9.  Having considered the evidence, the Board made the findings below.

(1)  State protection will be available to the applicant if he returns to India. [59] & [89]

(2)  Internal relocation is viable. [60]-[61] & [65]

(3)  According to Unique Identification Authority of India, the registration of Aadhar card system is wholly voluntary. The same authority also reported that according to Section 7, a citizen would not be denied of government services if he does not hold an Aadhar card. There are also security measures taken by the government to protect the information of citizens stored in the Aadhar card. [63]

(4)  There was no evidence to support the applicant’s allegation that if he goes to other places in India, he must have an Aadhar card or he would easily be identified. [76(iii)]

(5)  The authenticity of the letter purportedly from the Punjab Police in support of his witness Charanjit Kaur’s affidavit evidence that two persons were killed by Bhindranwala Tiger Force was questionable. [84]

(6)  The evidence in the applicant’s claim was largely based on his unsupported evidence. [85]

(7)  The evidence from members of his family, or relatives, and his friends is questionable and unreliable. [86]

(8)  The applicant’s evidence relating to the facts on which his claim was based also relied largely on speculation and hearsay. [87]

(9)  There was no evidence that the state was involved, and there was no evidence the local Panchayat and religious persons of the local Sikh temple wanted to harm him seriously or kill him. [88]

(10)  The applicant did not report the claimed assault and threat to police. Nor did he seek help from other Indian authority. There was no evidence that the state was involved. Reasonable state protection is readily available to him in India. [89]

(11)  On the totality of the evidence, the Board did not find his evidence incredible. It rejected the core facts in support of his claim. [93]

(12)  Therefore, the applicant has no real risk of any of the applicable risks if he returns to India. [94]

10.  For the reasons above, the Board dismissed his appeal and affirmed the Director’s Decision.

Application for leave to apply for judicial review of the Board’s Decision

11.  The applicant has filed Form 86 dated 31 December 2019 for leave to apply for judicial review of the Board’s Decision.

12.  In support of his application, the applicant has raised the grounds below to challenge the Board’s Decision:

(1)  Error of law in failing to conduct a proper hearing based on full and up-to-date country of origin information.

(2)  The adjudicator erred in law by adopting an impermissibly strict and legalistic approach to the assessment of evidence, thereby acting irrationally.

(3)  Procedural unfairness arising from the adjudicator’s failure to put crucial adverse concerns to the applicant.

(4)  The adjudicator erred in law by failing to conduct a proper and distinct assessment of the risk of arbitrary deprivation of life under Article 2(1) of The Hong Kong Bill of Rights.

(5)  The adjudicator’s assessment of internal relocation was irrationally flawed by legal error, inadequate reasoning, and a failure to consider material evidence.

(6)  The adjudicator’s credibility findings were marred by speculation, conjecture, and failure to consider the applicant’s evidence in its proper context.

(7)  The adjudicator’s assessment of state protection was flawed by a legal error in the application of the relevant test and a failure to engage with the principle of ‘operational willingness’.

(8)  The cumulative effect of the errors

(9)  The adjudicator failed to discharge the duty of enquiry incumbent in an inquisitorial process, thereby failing to elicit and properly determine the applicant’s claim.

(10)  The adjudicator failed to provide adequate reasons for the rejection of the applicant’s core evidence and key arguments, thereby frustrating the right to a meaningful appeal.

(11)  The adjudicator failed to conduct a proper ‘anxious scrutiny’ of the evidence, thereby acting in breach of the high standard of fairness required in non‑refoulement proceedings.

(12)  The adjudicator’s assessment of the risk from non-state actors was legally erroneous, contrary to the evidence, and failed to apply the correct ‘nexus’ test under the refugee convention.

(13)  The adjudicator’s handling of the medical evidence was legally erroneous, irrational, and in breach of the duty of anxious scrutiny.

(14)  The adjudicator’s finding that internal relocation would not be unduly harsh was irrational and reached without proper consideration of the applicant’s personal circumstances.

(15)  The cumulative institutional failures in the processing of the applicant’s claim rendered the entire procedure unlawful/unfair and incapable of yielding a just determination.

13.  In the written skeleton submissions, counsel for the applicant has summarized the above grounds into 8 points:

(A)  Failure to conduct a lawful rehearing based on current evidence;

(B)  Unlawful evidentiary approach & breach of anxious scrutiny;

(C)  Procedural unfairness and failure of inquisitory duty;

(D)  Failure to assess risk of arbitrary deprivation of life;

(E)  Irrational assessment of internal relocation;

(F)  Flawed assessment of state protection and nexus to convention reason;

(G)  Systemic institutional failures; and

(H)  Failure to consider grounds of appeal in rehearing.

14.  I shall deal with the applicant’s arguments in line with the skeleton submission, which has cut off the repetitions in the grounds set out in Form 86.

15.  Senior government counsel has submitted written submissions in opposition. In gist, the Director’s arguments are as follows.

(1)  The approach of the case of Mardi Satimun v Torture Claims Appeal Board / Non Refoulement Claims Petition Office and Another [2019] HKCU 112 (HCAL533/2018) should apply to this case. In my view, the approach of another case is not very useful as guidelines for the court of the same level. Each case must be dealt with in accordance with its particular circumstances. The other case can only be for reference.

(2)  The Board was not obliged to consider internal relocation as it rejected the applicant’s claim of risk. Further the Board had considered the updated country of origin information (“COI”),

(3)  The Board had considered BOR 2 risk.

(4)  It is within the province of the adjudicator to determine what evidence should be accepted or rejected.

(5)  The Board was fair because it had adjourned the hearing for the applicant to obtain evidence.

(6)  The Board had taken into consideration all the facts and circumstances relating to the applicant.

(7)  The Board found that the applicant’s evidence was unreliable, based on unsupported assertion or speculation and hearsay. The Board did not accept the facts of his claim, and therefore found that he will not be subjected to any real risk if he returns to India. The Board was entitled to make such findings.

(8)  However, the Board further considered the COI in relation to state protection and internal relocation, which are available and viable if he returns to India.

(9)  There was nothing that the Board had overlooked for the applicant’s non-refoulement claim, bearing in mind that the applicant was legally represented before the Board.

DISCUSSION

The relevant legal principles

16.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

17.  The Court of Appeal in Re: Zunariyah [2018] HKCA 14 further emphasized:

“22. It must be emphasized that in a judicial review, even in the context of a case of this nature, the court does not usurp the role of the primary decision maker. The court’s duty is to consider the legality, rationality and procedural fairness of the proceedings before the Director and the Board. Thus, even though the court should examine if the procedure adopted by the primary decision maker conforms with the high standard of fairness, the court should not intervene if the materials produced by an applicant do not reveal any ground to impinge the legality, rationality or fairness of the process below. An applicant must produce something to satisfy such threshold before leave to apply for judicial review can be granted.

23. Leave application is meant to be a filtering process and the judge is not expected to give elaborated reasons for his decision. …”

18.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

19.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI 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.”

Grounds in support of the application

Ground A

20.  Ground A refers to the Board’s failure to engage with the current evidence of the COI, in particular the systemic corruption and impunity at all levels of the government, police complicity in or failure to prevent attacks on religious minorities, refusing to register complaints, ineffective oversight, and nationwide violence against religious minorities and converts, not confined to Punjab. These are the general complaints against the receiving state.

21.  The Court of Appeal in TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, Hon. Cheung  CJHC, Stock VP and Fok JA (as they then were) held:

“28. Thirdly, what is the standard of proof?... ‘… In Article 3 of the Convention, ‘substantial grounds’ is required to establish a claim, which is more than a mere possibility of torture but do not need to be highly likely to occur to satisfy that provision’s conditions. The risk of torture must go beyond mere theory or suspicion. The risk does not have to meet the test of being ‘highly probable’, but it must be ‘personal and present’. For the purposes of Article 3 of the Convention, a foreseeable, real and personal risk of being tortured must exist in the country to which a person is returned.’

29. Whilst the decision-maker must take into account all relevant considerations including, where applicable, the existence in the country concerned of ‘a consistent pattern of gross, flagrant or mass violations of human rights’ (article 3(2) of the CAT), that alone does not as such constitute a sufficient ground for determining that a particular person will be in danger of being subjected to torture upon his return to that country. Additional grounds must exist to show that the person will be ‘personally at risk’. …”

22.  The applicant has not been able to show by evidence that he would be personally at risk.

23.  The applicant submitted that the Board had only considered the pre-dated significant developments in India’s political and social climate. The applicant referred to the COI (2018-2019) submitted by the applicant.

24.  In fact, the Board had considered The UK Home Office 2018 Country Policy and Information Note – India: Religious minorities in paragraphs 44 and 53, having considered the development in the intervening paragraphs. The Board was entitled to come to its conclusion that state protection will be available to the applicant if he returns to India.

25.  The Court of Final Appeal in Ubamaka Edward Wilson v Secretary for Security & Another (2012) 15 HKCFAR 743 held”

“176. … the Court should assess the risk at the time of the proceedings, taking account of information that has come to light after the deportation decision was taken in order to ensure that the Court is able to make a “full and up-to-date assessment” of the current situation.”

“181. … Whether the ill-treatment allegedly feared is of a nature which attains the minimum level of severity required; and whether the appellant has established substantial grounds for believing that, if deported, he would face a real risk of being subjected to such mistreatment, is a matter of judgment to be exercised with guidance from the relevant jurisprudence….”

26.  Since the applicant was legally represented before the Board, it can be assumed, unless proved by contrary evidence, that his lawyer had produced the updated COI to the Board for its consideration. On the face of the Board’s Decision, the Board had considered the updated COI before coming to its decisions.

27.  In relation to internal relocation, the Board had considered the distribution of population in India and concluded that the applicant has many options to relocate internally in India.

28.  In relation to the Aadhar card system, the applicant argued that it is no longer a voluntary system, but mandatory for assessing essential services, making the applicant traceable. If this is the case, the applicant’s legal representative should have brought it to the Board’s attention. Furthermore, the Board found from the COI that the information is protected and the UIDAI is barred from revealing personal information in Aadhaar database without permission from the relevant authorities such as the court’s order, or the order of a joint secretary, in case of national security. [63] The applicant has not disputed it.

Ground B

29.  Ground B refers to 3 errors, namely: dismissal of evidence without proper analysis; speculative credibility findings; and failure to apply anxious scrutiny, contrary to the inquisitorial and protective nature of non-refoulement proceedings.

30.  On the issues of failure to apply anxious scrutiny, contrary to the inquisitorial and protective nature of non-refoulement proceedings, it seems this is inconsistent with the views taken by the Court of Appeal.

31.  The Court of Appeal in TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, Hon. Cheung CJHC, Stock VP and Fok JA (as they then were) held:

“26. In the court below, the screening process has been described as “inquisitorial” in nature (paragraph 30 of the judgment). This is not a description used in Prabakar….

27. In my view, the description is at best a shorthand for the high standards of fairness required of the screening process. It is prone to create unnecessary confusion and arguments. Its use in the present context should be avoided.”

32.  The Court of Appeal in Re: RS CACV 206/2012, unrep., Hon Lam, Barma JJA and Macrae J. (as they then were), held:

“57. The high standards of fairness do not require the Adjudicator to play the role of an adviser to the Applicant to cover every possible gap in the Applicant’s case…”

33.  I bear in mind that the applicant was represented by a duty lawyer before the Board.

34.  On the first error, the applicant referred to the treatment of hearsay evidence by the Board and said the Board was in error as the Board rejected the hearsay evidence. In paragraph 86 of the Board’s Decision, the Board stated:

“I was unable to place any weight to the hearsay evidence from the Petitioner’s family, or relatives, and his friends. I found the evidence from members of his family, or relatives, and his friends to be questionable and unreliable. …”

35.  The Board did not reject the hearsay evidence, but only refused to give evidential weight to it, which is within the province of the Board. The applicant said the Board came to its conclusion on the hearsay evidence was without analysis. This accusation is unfounded. The Board had considered the facts and circumstances of his case before coming to its conclusion in relation to the fact that he was forced to marry KK [22], the affidavit of Charnjit Kaur [84], and the Punjab Police letter [84]. The Board found that the applicant’s evidence was largely based on his unsupported evidence. See paragraphs 85-86.

36.  The alleged second error is speculative credibility findings. Counsel submitted that paragraph 80 of the Board’s Decision that the reason for the applicant’s assault was to force him to apply for a dependent visa for KK in Hong Kong is contradictory with the applicant’s evidence that he was punished for breaching religious custom. This issue has been dealt with above. See paragraph 22 of the Board’s Decision.

37.  The third criticism is on the evidentiary treatment of the medical findings of the applicant; that is, the Board had not applied anxious scrutiny to the claim as called for by the Court of Final Appeal in Prabakar’s case. In my view, the Board had considered that the applicant was not seriously injured [81]. He was examined by a forensic pathologist at Police Headquarter in Hong Kong. The forensic pathologist’s report showed that the scars on the applicant did not show any diagnostic features of purposeful torture. The possibility of these scars being caused by accident was not ruled out and the scars did not show any serious injuries [82]. The Board had also considered his friend, Tarvinder Singh’s evidence, and compared it with his own evidence [83]. Having considered the evidence, the Board came to its finding on the applicant’s injury. This is entirely within the discretion of the Board.

Ground C

38.  Counsel submitted that the adjudicator breached the duty of fairness by acting as “silent critic”, making determinative adverse findings on points never put to the applicant, thereby denying him any opportunity to respond, relying on Browne v Dumm. This criticism is directed at the Board’s finding that there was no evidence to support the applicant’s saying that there is a Sikh temple everywhere in India; that the Aadgar system was voluntary, without allowing the applicant to prove that it is now mandatory; that the applicant’s brother obtained the marriage certificate was a speculation [78]; and that there was no evidence of anything sinister against him for leaving Sikhism and converting to Christianity without giving a chance to the applicant to explain. [76]

39.  I shall deal with each of the issues below.

40.  Browne v Dumm was considered by the Court of Appeal in Re Masud MD [2021] HKCA 1449 where it held:

“32. One of such rules that may be of relevance is the rule in Browne v Dunn. The rule requires that if a cross-examiner intends to challenge a witness’s evidence on a particular point as being untruth, questions must be put to him to give him notice that his credibility on that evidence would be impeached. The essence of the rule is that where it is intended to suggest that a witness is not speaking the truth or is lying on a particular point, or if there is an intention to impeach the credibility of the evidence of the witness, this should be pointed out to him, so that he may have the opportunity of replying to, explaining or otherwise dealing with the aspect of the evidence, allegations or accusations to which his attention is drawn. If this is not done, the court would not know the explanations or information which the witness might have been able to provide if he had the opportunity to respond. It is not only a rule of professional practice and a rule of conduct to be observed by the cross-examiner, but is essential to fair play and fair dealing with witnesses. Allegations directed against documents produced by a witness are also covered by this rule.

33. There is also no need to put every minute detail of the case to the witness. The question is whether the witness was given notice that some aspects of his evidence would not be accepted or his credibility in that regard would be impeached.”

41.  One must bear in mind that the rule refers to the duty of a cross-examiner. In the usual ex parte application where the applicant was unrepresented and there was no opposing party before the Board, the adjudicator will be the cross-examiner when he raises questions on the evidence. In this case, both parties were legally represented. The adjudicator assessed the evidence produced and cross-examined by the opposing party. The Court of Appeal in TK’s case has stated that the Board does not have the inquisitorial role to play. The Board would not make investigations into the facts of the case where the parties are legally represented unless it deems necessary to do so. It will determine the admissibility of the evidence and make findings on the facts of the case, based upon the evidence admitted. As the applicant was legally represented, the duty lawyer would understand that some aspects of the applicant’s evidence would not be accepted or his credibility would be in question without evidence to prove it. The applicant’s duty lawyer would have led evidence from the applicant on those issues.

42.  On the issue of the Sikh temples in India, the Board considered the COI and found that the applicant had adduced no evidence to prove that Sikh temples are everywhere in India. It simply did not accept the applicant’s evidence in the absence of proof in the COI. The Board did not find that the applicant was dishonest. There is nothing unfair to the applicant.

43.  As to the Aadhar system in India, which the applicant relied upon to say that his enemies may locate him by reference to the Aadhar data if he returns to India. The Board relied on the COI which stated that the system was voluntary. The COI relied upon by the Board must be available to the applicant’s duty lawyer. The duty lawyer should have referred the Board to the updated COI, which stated that it is now mandatory to register the data with the system as the applicant now alleges. In any event, the COI stated that the Aadhar data is under strict security and storage protocols [63] and is not freely available to the public without permission of the security authority or the court’s order. The applicant has not disputed it.

44.  As to the marriage certificate issue, it was not the Board’s speculation, but rather, it is the applicant’s allegation of the facts of his case.

45.  Counsel further pointed out that the non-refoulement process is inquisitorial, imposing a positive duty to actively enquire and ensure all relevant matters are investigated. He commented that the applicant was not given a full opportunity to present his case; failing to make investigation into why the Director refused to issue a detention certificate; and failing to clarify ambiguities, instead of developing alternative theories.

46.  It is incorrect to say that the applicant was not given the full opportunity to present his case before the Board as he was legally represented and he had given oral evidence before the Board himself. The Board does not have the duty to make investigation with the Director why he did not issue a detention certificate or clarify ambiguities for the applicant. It is entirely within the Board’s discretion to accept or reject the evidence before it.

Ground D

47.  Counsel submitted that the Board had committed an error in law as it said the facts in the applicant’s claim did not give rise to any risk of violation to right to life under Article 2(2) to Article 2(6), without considering other issues under Article 2 (1), such as direct threats from his brothers, past killings of converts, and the evidence of other people having been killed by Sikh extremists, which will constitute a reviewable error sufficient to quash the Board’s Decision.

48.  In my view, the above comments are taken out of context of the Board’s Decision. The adjudicator had considered the applicant’s evidence; the evidence of the brothers’ threat and assaults causing injuries to the applicant; the medical report of the forensic pathologist on the applicant; the statement of his friend, Tarvinder; his mother’s evidence that she had received a threatening letter against him, and his two friends who had converted to Christianity from Muslim were killed; the affidavit of Charanjit Kaur that two persons were killed, and the letter purported to be from the Punjab Police, which the Board found to be vague in the identities of the two dead persons. See paragraphs 78-84 of the Board’s Decision.

49.  The Board considered that the above evidence was largely based on unsupported evidence [85] and hearsay evidence. [86] It found the evidence from members of his family, or relatives, and his friends to be questionable and unreliable, refusing to place any weight on the evidence, which the adjudicator was entitled to do. [86]

50.  The Board had specifically assessed the applicant’s evidence, which it found unreliable. It stated its reasons for disbelieving the applicant’s evidence in the Board’s Decision:

“93. The Petitioner’s evidence relating to the facts on which his claim based relied largely on his unsupported assertion, and also on speculation and hearsay. On totality of the evidence, I did not find his evidence to be credible. I am therefore unable to attach any weight to his evidence that he had been assaulted and threatened by his two elder brothers, and by people from the local Panchayat and the local Sikh temple in his local area in Punjab in India. I am equally unable to place any weight to his evidence that there was a genuine threat against him from people of extremist organizations like Babbar Khalsar or Khalistan Liberation Force. I was therefore not persuaded, even to the low standard required, that the Petitioner had been assaulted and threatened by his own family members, and by people from the local Panchayat and the local Sikh temple in his home areas in Punjab in India, or otherwise ill-treated, in his home country, India.”

Ground E

51.  Counsel submitted that the Board was in error in coming to its conclusion that internal relocation is viable for the applicant. On the issue of safety, it is submitted that the Board had relied on outdated COI. On the issue of traceability, the Aadhar is now mandatory for essential services and finally, the Hong Kong Sikh authorities located across India had the applicant’s name publicly announced, creating a nationwide risk from any Sikh extremist.

52.  Internal relocation is only relevant if the applicant succeeds in establishing any of the applicable risks. The Court of Appeal in TK’s case held:

“32. Fourthly, the question of internal relocation (otherwise known as “internal flight”). This is a concept common to refugee law and torture claims. The rationale is simple: if the risk of persecution or torture is a localised one, and it is not unreasonable or unsafe for the refugee or claimant to relocate to another part of the country in question (the “internal relocation alternative”), there is no justification for affording international protection under either the Refugees Convention 1951 or the CAT.”

53.  In view of the Board’s findings under paragraph 93 of the Board’s Decision, it is not necessary for the Board to consider internal relocation for the applicant.

54.  In paragraph 61, the Board referred to the relevant COI and found that Sikh influence outside Punjab is relatively minor. Therefore, the applicant’s fear of ill‑treatment by the Sikh communities would not likely to materialize in states with little or minimum Sikh presence, or far away from Punjab and other Sikh states. The applicant does not dispute it.

55.  The Aadhar system has been discussed above. Even if the applicant is correct to say that the Aadhar system is mandatory, his privacy is protected in India.

56.  In a letter dated 16 February 2005 of the Hearing Bundle at page 148, the Khalsa Divan (Sikh Temple) Hong Kong wrote to the applicant, advising him to take baptism (Amrit) again after given some punishment like sweeping, cleaning in temple. It did not say that his life will be in danger if he refused to re-join Sikhism. Again, this issue is irrelevant because the Board did not accept the core facts in support of the applicant’s claim.

Ground F

57.  Counsel submitted that the test of state protection requires an evaluative assessment of both ability and willingness to provide effective protection to the applicant.

58.  The Board found in paragraph 89 that the Indian authorities are not unwilling and are able to stop crimes and combat corruption. The Board was entitled to reach its conclusion after considering the COI. There is no substance in the applicant’s submission.

59.  Counsel complains that the adjudicator found that the applicant did not have convention reason for ill-treatment without rigorous analysis, referring to paragraph 105 of the Board’s Decision.

60.  First, the Board had already considered the relevant factors before coming to its conclusion. Counsel’s complaint seems to arise out of the assertion that the Board has an inquisitorial duty to make investigation and should adopt a protective attitude. These issues are misconceived. There is no evidence that the duty lawyer for the applicant had raised those issues as suggested by counsel before the Board, and the Board did not deal with them. There is no substance in this complaint, too.

Ground G

61.  This ground relies on the cumulative effects of the complaints above to say that the Board was unfair in its assessment of the applicant’s appeal.

62.  The complaint that the Director did not hold a screening interview is insignificant since the Board’s Decision superseded the Director’s Decision. The applicant was legally represented before the Board. Counsel emphasized that the Board failed to use inquisitorial powers to make investigation into the applicant’s core facts. As pointed out by the Court of Appeal in TK’s case, the Board does not have the inquisitorial role to play, especially when the applicant was represented by his duty lawyer. That the Director refused to issue the detention certificate cannot be a ground in support of this application. If this is a relevant issue for the applicant’s appeal before the Board, the duty lawyer would have taken up this issue for the appeal. This issue was not before the Board.

Ground H

63.  Counsel complains that the Board has failed to consider the applicant’s grounds of appeal without giving any reason for so doing, which constitutes an error of law and procedural irregularity, which cannot be cured by the form of re-hearing and the Board’s Decision is unlawful and should be quashed.

64.  Counsel has not set out the grounds of appeal that the Board had failed to consider or addressed. In my view, the duty lawyer should have brought the grounds of appeal to the Board. Since the Board’s hearing is a re-hearing of the applicant’s refoulement claim, the applicant may simply ask the Board to re-hear his case without setting out his grounds of appeal against the Director. The Board’s Decision supersedes the Director’s Decision.

65.  The applicant’s skeleton submissions have been dealt with above. For the reasons given, the applicant’s reasons in support of his application are without merits.

66.  I do not find that the applicant has raised any valid reason for this Court to interfere with the Board’s Decision.

67.  The applicant therefor fails to establish that he has any prospect of success in his intended application for leave to apply for judicial review of the Board’s Decision.

DISPOSITION

68.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his 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