LAKHWINDER SINGH v. TORTURE CLAIMS APPEAL BOARD

HCAL 270/2022

[2025] HKCFI 6224

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 270 OF 2022

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 / the Applicant being absent in open court;

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

Observations for the Applicant:

1.  The Applicant is a 45-year-old national of India who entered Hong Kong illegally sometime in 2019 and was subsequently arrested by police on 3 October 2020. 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 India he would be harmed or killed by his paternal uncles due to some land dispute within the family in his home village. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Palasor, Arno The Patran, District Patiala, Punjab, India. After leaving school he worked as a farmer on his family’s farmland in his home village, married his wife and raised a family with 2 children.

3.  Upon the passing of his grandfather in 2013 who owned the family’s farmland in the home village including those on which the Applicant had been farming for years, and when his father and his 3 paternal uncles in February or March 2014 met to discuss the distribution of his grandfather’s lands but failed to reach agreement, it led to serious conflicts between them within the family.

4.  Shortly thereafter one day while working on his family’s farmland, the Applicant was attacked by his uncles and their sons by punching and kicking all over his body resulting in cuts and bruises until they were restrained by the neighbours, and before they left his uncles threatened to kill him next time if they saw him on the farmland.

5.  As a result his father became concerned for his safety and sent him to stay in his maternal uncle’s place in Amritsar, and on 17 August 2014 the Applicant departed India for Hong Kong where he subsequently overstayed and was eventually repatriated to India on 20 June 2018.

6.  Upon returning to his home village, the Applicant then attended a family meeting between his father and the paternal uncles to try to resolve their dispute but that they again failed to reach any settlement.

7.  One day in February 2019 the Applicant confronted his uncles over their dispute during which he was again attacked by them and their sons with wooden sticks, and before they left his uncles threatened that next time they would kill him.

8.  Thereafter the Applicant became fearful for his life and again fled to Amritsar, and in May 2019 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 9 January 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

9.  By a Notice of Decision dated 17 March 2021 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”).

10.  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 risk of him being harmed or killed by his paternal uncles 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 his uncles to seriously harm or kill him other than to put pressure on his family to settle their dispute, that in any event it was a private land dispute between his family and his uncles 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 1.2 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 or Delhi where it would be difficult if not impossible for his uncles to locate him.

11.  On 20 April 2021 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which the Board allowed the slightly late filing of his Notice of Appeal and proceeded to consider his appeal without holding any oral hearing and on paper based on all the materials and information submitted by him earlier to the Director and available in the hearing bundle before the Board. On 21 March 2022 his appeal was dismissed by the Board which also confirmed the Director’s decision.

12.  In its decision[1] the Board accepted the Applicant’s claim of fear of harm from his paternal uncles due to their dispute with his family but found no reliable evidence of any real intention of his uncles to seriously harm or kill him, and that in any event it was a private land dispute between his family and his uncles only without any official involvement that state or police protection would be available to the Applicant upon his return to India as well as reasonable internal relocation alternatives for him to move safely to other parts of the country away from his home district without any risk of being located by his uncles that his claim for non-refoulement protection failed on all applicable grounds.

13.  On 27 April 2022 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or his supporting affirmation of the same date to which he just attached a copy of the decision but without putting forth any proper ground for his intended challenge. As such, 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 of the Board’s decision.

14.  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.

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

16.  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.

17.  Moreover, the Applicant recently requested to withdraw his application by way of letter dated 9 October 2025 and affirmation filed on 11 November 2025 as his issue in his home country has been resolved that he now wants to return to India.

18.  In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation of no more issue for him to return to his home country, I accordingly dismiss his leave 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