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HCAL 353/2020
[2025] HKCFI 3600
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 353 OF 2020
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BETWEEN
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Baljit Singh |
Applicant |
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and |
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Torture Claims Appeal Board |
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 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 March 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 17 January 2020. The Board’s Decision can be viewed in the following hyperlink:-
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000353_2020_files/the_Board's_Decision.pdf
2. The Board found that the applicant was unable to make out his claims for non-refoulement protection on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board rejected the applicant’s appeal/petition and confirmed the decision of the Director of Immigration (“the Director”) dated 28 March 2018, which rejected the applicant’s non-refoulement claim.
Amendments
3. In Form 86, the applicant spelt the Board’s name wrong and named the Board as both the putative respondent and the putative interested party, when the putative interested party should be the Director.
4. 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 if refouled to India, a man named Diwan Singh (“Diwan”) and his son Darshan would harm or kill the applicant due to Diwan’s displeasure of the applicant’s relationship with his daughter Veerpal. The applicant and Veerpal were secretly married in around early 2007 without Diwan’s blessings.
Oral hearing
7. The applicant requested for an oral hearing of the Leave Application and his case was heard on 24 July 2025.
8. At the hearing, the applicant told this court that he had divorced Veerpal in 2018 or 2019. The applicant also said that his own father disowned him in 2016 and refused to let him go back to the family home. Thus, he had nowhere to go back to in India.
Grounds for judicial review
9. 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).
10. The applicant did not advance any ground for the intended judicial review in Form 86, nor in his supporting affirmation dated 10 March 2020. The applicant merely stated in the affirmation that he was not satisfied with the Board’s Decision and that he could not go back to his home country as his life would not be safe.
11. What the applicant said at the oral hearing before this court could not be any valid ground for the intended judicial review at all. In fact, if the applicant had already divorced Veerpal in 2018 or 2019, there was no reason for Diwan or Darshan to harm or kill the applicant any more. The fact that the applicant’s own father disowned him or refused to let him return home is completely irrelevant to his non-refoulement claim.
Discussion
12. 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).
13. Thus, despite the fact that the applicant did not advance any valid ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.
14. In assessing the appeal by the applicant, the Board had an oral hearing on 13 December 2019 and the applicant was present. Thus, the applicant did have the opportunity to present his case to the Board in person.
15. The Board was willing to accept the basic facts advanced by the applicant that he married Veerpal against the wish of Diwan, as a result of which he was threatened and assaulted by Diwan and/or Darshan and their people, and was injured on a few occasions to a minor extent.
16. However, based on the Board’s findings that Diwan and Darshan were non-state actors in relation to the applicant’s alleged situations, the applicant had moved with Veerpal to Shimla and Lucknow without incident before he left India, and that Veerpal had returned to stay with her own family, the Board explicitly found that there was no or no reliable evidence to show the following:
(1) Diwan or Darshan would harm or kill the applicant if he were to return to India;
(2) the applicant would face risk throughout India;
(3) the applicant suffered injuries to the required level of severity;
(4) the state of India was unwilling to help the applicant for a Convention reason.
17. Moreover, based on the applicant’s evidence and reliable country of origin information, the Board found that state protection would be available to the applicant. The applicant’s choice of not to follow up with his complaint to the police about the assault and his failure to seek help from other state organisations did not mean state protection was not available to him.
18. The Board hence found that the applicant did not face a real or substantial risk of torture and ill-treatment should he return to India.
19. Though the Board noted that the assessment on viability of internal relocation was not necessary given its findings, it nevertheless went on to assess this option and concluded that the applicant could safely relocate to other areas in India such as Mumbai or Delhi. The applicant, being an able-bodied adult who had experienced no impediment in these cities, enjoyed freedom of internal movement under the law of India. There was also no evidence to show that Diwan or Darshan had influence beyond the local area. The Board was not persuaded that either of them would follow the applicant around the country.
20. The applicant’s alleged danger upon return to his home country had therefore been duly considered but rejected by the Board.
21. The assessment of evidence, country of origin information and risk of harm was primarily within the realm of the Board. The Board was entitled to come to its own conclusion. If the applicant is seeking to challenge the Board’s finding of facts, it is not permissible in an application for judicial review. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.
22. In fact, as aforesaid, as the applicant had divorced Veerpal in 2018 or 2019, there was absolutely no reason for Diwan or Darshan to harm or kill him anymore.
23. 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.
24. 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
25. For reasons aforesaid, the Leave Application is dismissed.
Dated the 12th day of August 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 the applicant’s 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:
12 August 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:
12 August 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 11106/18/4/116/IN2156
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 354/18
(Formerly RBCZ 10098/17)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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