AMANDEEP SINGH v. TORTURE CLAIMS APPEAL BOARD

HCAL 3490/2019

[2025] HKCFI 2768

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3490 OF 2019

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;

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 37-year-old national of India who arrived in Hong Kong on 10 April 2013 but when he was refused entry by the Immigration Department, he raised a torture claim on the basis that if he returned to India he would be harmed or killed by certain local supporters of the political party Indian National Congress Party (“INC”) as he refused to join their party, and after his torture claim was rejected, he then sought non-refoulement protection on the same basis. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Ransih Kalan, District Moga, India. After leaving school he worked as a casual worker and truck driver in his home district, and supported a political party known as Comrade Communist Party regularly attended their local meetings and activities without holding any official post in the party.

3.  In about early 2011 some local INC supporters started to approach the Applicant to invite him to join their party, and when he refused, they then uttered threats against him.

4.  One day in April 2011 a group of some 40 - 50 INC supporters armed with guns and other weapons came to the Applicant’s home to again demand him to join their party, but this time when he refused, they beat him severely with wooden sticks until he lost consciousness and collapsed onto the ground, and was subsequently taken to hospital for medical treatments.

5.  Upon his discharge from hospital, the Applicant became fearful for his life and fled from his home district for another town in Moga until 2013 when he thought it would be safe to return to his home in Ransih Kalan.

6.  However, one day in February 2013 when he ran into those INC supporters who again made threats against him, the Applicant felt it was no longer safe to remain in the country, and so on 10 April 2013 he departed India for Hong Kong, and when he was refused entry he raised his torture claim, and after it was rejected he then sought non-refoulement protection, for which he completed a Supplementary Claim Form (“SCF”) on 25 May 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.  By a Notice of Decision dated 11 July 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including 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”).

8.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from those local INC supporters upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill him or any political reason for them to specifically target him given that he was just an ordinary supporter of the so-called Comrade Communist Party without any official post in that party, nor is it accepted that there would still be any adverse interest in him from anyone after all these years since he left the country, that in any event in the absence of 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 2.9 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 anyone to locate him.

9.  On 23 July 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 15 October 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 22 November 2019, his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  In its decision the Board found serious and material inconsistencies discrepancies and contractions in the Applicant’s claim to have been a supporter of some political party known as Comrade Communist Party of which the Board was unable to find any reference from relevant COI, and that the Applicant was not even aware of its full or proper name other than it was known as Comrade and without any proper knowledge of the party’s political philosophy or policies if any, nor was the Applicant able to provide any details of his involvement in that party other than to invite people to join the party and by putting up posters in the streets that even if indeed he was involved in such a party in his home district that there was no reason political or otherwise for any INC supporters to have any adverse interest in him or to specifically target him given that even on the basis of his own case that he was just an ordinary supporter without holding any official post in a party known as Comrade that the Board rejected his claim of fear of harm from any INC supporters that caused him to leave his country to come to Hong Kong to seek protection as wholly untrue and concluded that his non-refoulement claim for protection failed on all applicable grounds.

11.  On 25 November 2019, 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 in his supporting affirmation of the same date in which he just stated that he reject the decision as it disregarded his danger and threats that he would face in his country but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application. 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.

12.  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.

13.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 52 – 64 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, 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 finding of the Board.

14.  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.

15.  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.

16.  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