HARJINDER SINGH v. TORTURE CLAIMS APPEAL BOARD

HCAL 2074/2024

[2025] HKCFI 1173

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2074 OF 2024

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

Following:

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

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 30-year-old national of India who entered Hong Kong illegally on 22 April 2024 and was arrested by police on the same day. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim for protection on the basis that if he returned to he would be harmed or killed by a certain fellow villager over some land dispute in his home village.  

2.  The Applicant was born and raised in Shambhoo Kalam, Tehsil-Rajpura, Patiala, Punjab, India. After leaving school he worked as an electrician in his home village to make his living.

3.  In 2019 some villagers including the Applicant’s parents started to raise issues over a piece of land in the village which they accused the former village head of stealing for his family but which was denied by the village head’s son Ranjeet who instead blamed the Applicant and his family for making false accusation, and after several meetings with the villagers the village committee eventually in 2023 agreed to launch an investigation into the dispute, and for which Ranjeet became furious and threatened to kill the Applicant.

4.  Shortly thereafter one day in January 2024 Ranjeet together with his followers came to the outside of the Applicant’s home shouting for the Applicant to come out, and when he refused, Ranjeet then fired gun shots at his house, and swore to kill him next time before he left with his followers.    

5.  After the incident the Applicant became fearful for his life and fled to Sahibzada Ajit Singh Nagar to hide in his sister’s place before moving on to Delhi to stay in a friend’s home, and on 19 April 2024 he departed India for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 19 June 2024 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

6.  By a Notice of Decision dated 19 July 2024 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

7.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real and foreseeable risk of his perceived harm from Ranjeet and his people upon his return to India due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of Ranjeet to seriously harm or kill him other than some angry words and empty threats, that in any event it was a private land dispute between the 2 of them only without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in India with a large population of 1.4 billion people spread across a vast territory of more than 3.2 million square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from his home district in large cities such as Mumbai where it would be difficult if not impossible for Ranjeet to locate him.

8.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 25 September 2024 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 30 October 2024 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board accepted the Applicant’s claim of fear of harm from Ranjeet but found that it was a private land dispute between the 2 of them only without any official involvement that state or police protection would be available to the Applicant upon his return to India to negate any risk that may arise from such dispute that it concluded that the Applicant’s claim for non-refoulement protection failed on all the applicable grounds.    

10.  On 8 November 2024 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no proper ground for seeking relief was given in his Form or his supporting affirmation of the same date other than some bare assertions that the Board failed to assess his situation and that its assessment of internal relocation was not reasonable but without providing any relevant or necessary details or particulars or elaboration as to how it was so, nor was he able to do so at the hearing of his application. As such, I do not find these complaints of the Applicant reasonably arguable, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge either.

11.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

12.  In the Applicant’s case, the Board rejected his claim on its findings based on the factual basis of even his own case and on his own evidence that it was a private land dispute between him and Ranjeet only without any official involvement that any claimed risk that may arise therefrom would be negated by state and police protection available to the Applicant upon his return to India, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.

13.  Furthermore, the fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim even if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, a decision also agreed and confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.                

14.  In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

15.  For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly 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