SINGH IQBAL alias SINGH GURJEET v. NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1074/2021

[2026] HKCFI 293

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1074 of 2021

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

Following:

1.  The Applicant’s Form 86 be amended to name the Non-refoulement Claims Petition Office as putative respondent, its decision dated 20 July 2021 as the decision sought to be reviewed and the Director of Immigration as putative interested party; and

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

Observations for the Applicant:

1.  By a Form 86 filed on 28 July 2021 (“Form 86”), the Applicant sought leave for judicial review of the decision of the Director of Immigration (“DI”) dated 20 July 2021.  The Applicant has not exhibited a copy of the decision he sought to review to the supporting affirmation.  The Court’s staff later obtained from the Secretariat of the Non-refoulement Claims Petition Office (“NRCPO”) and DI copies of written decisions bearing the Applicant’s name and reference numbers.  According to the documents, the DI made a tier‑1 decision on the Applicant’s non-refoulement claim based on risk of violation of Articles 2 and 3 of the Hong Kong Bill of Rights and persecution risk on 24 October 2019, and the NRCPO made a tier-2 decision on the same risks on 20 July 2021 (see hyperlink of the decision below)[1]. The Applicant’s torture risk was previously assessed by the Torture Claims Appeal Board back in 2013 before the unified screening mechanism came into place.

2.  In the circumstances, on my own motion, paragraph 1 of the above orders is made to properly name the decision challenged and the parties of these proceedings.  The Applicant does not require an oral hearing; I dispose of this application by consideration of documents only.

3.  The Applicant is an Indian national.  His non-refoulement claim was based on an alleged risk of being harmed by the members of a political party called Akali Dal Party (“ADP”).  The NRCPO accepted the core aspects of the Applicant’s claimed account to be true.  It further accepted that the type of harm the Applicant feared from the ADP supporters and/or their agents would be likely to cause him “severe pain and suffering” that would come within the meaning of “degrading treatment”.  However, in considering whether there were substantial grounds to believe that the Applicant would face a real risk of being subjected to such treatment if he returned to India, the NRCPO said it must also take into account whether there was appropriate State protection available, and whether or not it would be safe and reasonable for him to relocate to an area of India where he would not be at risk.  In this regard, while the Applicant claimed that he could face a risk of harm from the ADP supporters throughout India, he did not provide a credible, plausible or reasonable explanation of how or why that could or would occur, considering the enormous size and population of India.  Accordingly, having carefully considered the Applicant’s claims and the evidence as a whole, the NRCPO found that there were no substantial grounds to believe that he would face any real risk of being subjected to violation of rights under Articles 2-3 of the Hong Kong Bill of Rights if he returned to India; neither was he under a well-founded risk of being persecuted so that he had to stay outside of his home country.

4.  The Applicant has not set out any ground of judicial review; he just generally stated that the relevant decision was unreasonable and his claim had not been carefully considered.  I have reviewed the NRCPO’s decision vigorously, but do not agree with those general statements.  It has been reiterated time and again that the primary responsibility for the factual assessment of whether any risk of ill-treatment exists lies with the decision-makers below (such as the NRCPO). In the absence of any errors of law, procedural unfairness or irrationality, the Court would not reopen the findings below or make a determination on the case afresh.  The role of the Court in a judicial review is not to provide a further avenue of appeal (see Re Lakhwinder Singh [2018] HKCA 246).

5.  The leave application is thus 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