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

HCAL 972/2020

[2025] HKCFI 2281

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 972 of 2020

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:

Introduction

1.  This is an application by Mr Manbir Singh (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 7 May 2020 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 28 November 2017 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

Background of the Applicant

2.  The Applicant is an Indian.  He was born on 13 January 1987 in Amritsar, Punjab, India.  He received 12 years of education.

The Claim

3.  The Applicant claimed that he had a dispute with his neighbour (“Neighbour”) over a plot of land in the outskirt area of his home village (“Land”).  The Applicant inherited the Land in around 2014 when his grandfather passed away.

4.  The Applicant claimed that the Neighbour was around 50 years old in 2014.  He was a leader of the political party Shiromani Akali Dal and an influential man.

5.  The Applicant claimed that shortly after he inherited the Land, his father got into an argument with the Neighbour over the Land and the Neighbour attacked his father (“Attack”).  His father died from the head injuries he suffered from the Attack.  The police went to the Applicant’s home to ask about the Attack and his family identified the killer to the police.  The police promised to look into the matter but they never gave any update.

6.  In the evening of a day in May 2014, that was around 1.5 months after the Attack, the Neighbour came to the Land with 7 or 8 people and threatened to kill the Applicant’s family unless they left (“Threatening Incident”).  The Applicant made another police report but he did not hear from the police again.

7.  A few days after the Threatening Incident, the Neighbour fired a gun at the Applicant but missed (“1st Shooting Incident”). The Applicant was driving a motorbike at that time and he fell to the ground, causing a small wound in his left knee.  The Applicant’s family moved to Amritsar for about a year after the 1st Shooting Incident.

8.  The Applicant went to the city court in Tam Taran in around November 2015 to sell half of the Land to an influential man (“Buyer”).  Suddenly, the Neighbour and several of his men approached the Applicant and he threatened to kill the Applicant if the Applicant sold the Land.  One of the associates of the Neighbour fired a shot in the air (“2nd Shooting Incident”).  The Applicant completed the sale to the Buyer notwithstanding the threat from the Neighbour.

9.  After the 2nd Shooting Incident, the Applicant planned to leave India for his safety.  He continued to receive death threats from the Neighbour through his uncle after the 2nd Shooting Incident.  The Applicant travelled to New Delhi in preparation for his departure, where he stayed peacefully for about 15 to 20 days.

10.  The Applicant claimed that he would be harmed or killed by the Neighbour if he were returned to India.

Procedural history

11.  The Applicant arrived in Hong Kong on 14 April 2016 illegally.  He surrendered to the Immigration Department on the next day. By a written representation of 17 June 2016, the Applicant lodged the Claim.

12.  The Director had considered the Claim on all applicable grounds under the Unified Screening Mechanism (“USM”), namely:

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

13.  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.

14.  On 22 May 2020, 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.

The Board’s Decision

15.  After considering the Applicant’s claims including his written evidence, the record of his interview, his notice of appeal and his oral evidence given at the hearing before the Board, the Board formed the view that the Applicant was not a witness of truth for the reasons given in §§37-39 of the Board’s Decision.  The Board found that the Applicant failed to establish any factual basis for claiming non-refoulement protection.

16.  The Board further found that there was nothing to suggest that state protection would not be available to the Applicant upon his return (§§51, 52 and 59 of the Board’s Decision).  It also held that the Applicant had many options for internal relocation within India, such as New Delhi, Mumbai or Kolkata and it would not be unduly harsh to expect him to relocate (§§71-74 of the Board’s Decision).

17.  The Board found that the Applicant had failed to establish his case on all applicable grounds under the USM.  The Board affirmed the DOI Decision and dismissed the Appeal.

Legal principles applicable to judicial review

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

19.  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.”

20.  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

21.  In the Form 86, the Applicant did not put forward any ground for the intended judicial review.

22.  In the Supporting Affirmation, the Applicant exhibited the Board’s Decision without putting forward any ground for the intended judicial review.

23.  Hearing for this application was originally scheduled for 16 January 2025.  The Applicant applied for legal aid on 10 January 2025.  The aforesaid hearing was vacated and re-fixed for 3 April 2025.  By a memorandum filed on 27 March 2025, the Director of Legal Aid informed the court that the Applicant’s legal aid application had been refused.   

24.  The Applicant attended the court hearing on 3 April 2025 (“Court Hearing”) and said that his wife had passed away while he was in Hong Kong.  He had lost contact with his children and had no information on his hometown.  He had changed his religious belief to Islam.  He said that he would like to submit to the Board the First Information Report (“FIR”) made to the police referred to in his claims but the Board did not allow time for him to do so.  He also complained that the country of origin information (“COI”) considered by the Board was not related to his home village.

25.  The Applicant arrived in Hong Kong on 14 April 2016 and raised the Claim on 17 June 2016.  From §5 of the DOI Decision, it can be seen that the Applicant was assisted by the Duty Lawyer Service in presenting the Claim to the Director.  The hearing before the Board took place on 8 January 2020.  The Applicant had more than 3.5 years to arrange for documents supporting his claims.

26.  The Board’s Decision did not record any request from the Applicant for submitting further documents.  The Applicant’s complaint of lack of opportunities to submit FIR lacked merits and factual basis.  

27.  In any event, it was part of the Applicant’s claim that he had made reports to the police.  This fact was known to the Board and the Board had taken that into account in reaching its decision.  (§§12, 14 and 46 of the Board’s Decision)  Further documents on this issue would not take the Applicant’s case any further.

28.  COI are information relevant to the conditions of the risk state.  They may not be direct reports on matters occurred at the Applicant’s home village.  Provided that the COI were relevant to the issues before the Board, the Board would have to consider them.  The Applicant’s complaint on the COI considered by the Board has no merits.  

29.  In disputing the Board's assessment on evidence, credibility, 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.  The aforesaid complaints raised by the Applicant at the Court Hearing are not reasonably arguable for his intended judicial review.

31.  In §§4-25 of the Board’s Decision, the Board set out the Applicant’s evidence and some observations of the Board.  In §38 of the Board’s Decision, the Board set out material facts and information provided by the Applicant which the Board found implausible or unreliable and affected adversely his credibility and the reliability of his evidence. 

32.  The Board was of the view that the number and nature of inconsistencies and implausibility in the Applicant’s evidence were serious and had undermined its reliability.  The Board found the Applicant dishonest and unreliable, and that he was not a genuine claimant.

33.  On the totality of the evidence, the Board was not convinced that he came to Hong Kong because of the alleged threat to kill or harm him by Neighbour.  The Board was not convinced that he had suffered any physical or mental pain and sufferings as he had alleged.  The Board was not convinced that the Applicant was the owner of the Land which Neighbour wanted to acquire or there was any land dispute which involved the Applicant at all. The Board was also not convinced that Neighbour and his men, if any, were still chasing the Applicant all over his home country to kill him or would have the resources to do so.  The Board found that the centrepiece of the Applicant’s story did not stand.  

34.  The Applicant did not provide any particulars or specifics as to how the Board had erred in the Board’s Decision in affirming the DOI Decision, or in what way the Board’s Decision was unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters.

35.  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.

36.  In §§41-70 of the Board’s Decision, the Board assessed the Claim under each of the applicable grounds under the USM.  The Board was of the view that without a set of reasonably plausible facts, there was no factual basis on which the Board could accept that the Applicant was subjected to any risk of harm in his home country. 

37.  The Board found that there was no evidence of physical or mental pain or suffering which satisfied the element of “severe pain and suffering physical or mental” required of the torture risk (§44 of the Board’s Decision).  There was no hostile act or pain or suffering inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity of the national government of India.  The Board did not accept that state protection would not be available if the Applicant were returned to India.  Internal relocation was also viable for the Applicant.

38.  The Board found that there were no substantial grounds to believe that the Applicant faced a real risk of being subjected to the torture risk or the BOR 3 risk if he returned to India.  The Board did not accept that the Applicant had a well-founded fear of the persecution risk.  The Board also found that there were no grounds to believe that the Applicant faced the BOR 2 risk.

39.  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

40.  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