MALAM SINGH v. NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 513/2021

[2026] HKCFI 110

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 513 of 2021

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

Following;

1.  Form 86 be amended on the court’s own motion as follows:-

a.  the Non-Refoulement Claims Petition Office be named as the Putative Respondent; and

b.  the Director of Immigration be named as the Putative Interested Party.

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

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 12 April 2021 (the “Form 86”), the Applicant sought leave to apply for judicial review (the “Leave Application”) against the decision of the Non‑refoulement Claims Petition Office (the “Board”) dated 25 March 2021 (the “Board’s Decision”).

2.  In the Form 86, the Applicant has named both the Board and the Immigration Department as the proposed respondents.  As it is trite that the Board should be the proposed respondent whereas the Director of Immigration (the “Director”) should be the proposed interested party, I make an order to amend the Form 86 accordingly on the court’s own motion.

3.  An oral hearing was requested by the Applicant.  It took place before me on 22 December 2025 (the “Hearing”) and the Applicant attended in person.

Background

4.  The Applicant’s background, the basis and history of his claim and the arguments he advanced had been set out in details in the Board’s Decision, and it is not necessary for me to repeat the same here.  The hyperlink to the Board’s Decision is included below[1] for reference.  In short, the Applicant is an Indian national. He seeks protection on the basis that he was persecuted in India because of his support of the Bharatiya Janta Party (“BJP”) as he was targeted by his relative named Gangar Singh (“Gangar”) who was allegedly affiliated with the Indian Congress Party (“CP”) in a land dispute.

Discussion

5.  This type of leave application is intended to be a filtering process and elaborate reasons are not necessary (see Re Zunariyah [2018] HKCA 14, at §23).  Hence I shall set out the brief reasons for my decision below.

6.  It is trite that determination of the merits of a non-refoulement claim is essentially within the remit of the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them.  A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error.  A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see 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.

7.  In his affirmation made in support of the Form 86, the Applicant complained that he was not given legal assistance in the appeal before the Board.  He also made the general assertion that his life remained in danger in India.

8.  In respect of the complaint of lack of legal assistance, it is plainly unmeritorious.  As recorded in the Board’s Decision, a Duty Lawyer was in fact assigned to the Applicant to represent him in the hearing before the Board on 10 February 2021. There is no evidence before the court showing that the legal representation afforded to the Applicant was inadequate in any way.

9.  For completeness, I have also reviewed the Board’s Decision in detail. I cannot detect any error of law, procedural unfairness or irrationality.  There is nothing to indicate that the Board had failed to take into account any relevant matters or that it had taken into account irrelevant matters. 

10.  The Board’s Decision was comprehensive with adequate reasons provided. In particular, the Board was plainly correct in finding that there is no evidence of any real risk of serious harm, in particular:-

(1)  There were serious irreconcilable inconsistencies in the Applicant’s evidence (§29).

(2)  The CP was no longer the ruling party as the ruling government in India was changed to the BJP (§29ii).

(3)  None of the Applicant’s family members who were entitled to inherit the subject land in the dispute was harassed or harmed by Gangar who was alleged to be interested in acquiring the land (§29viii).

(4)  Even on the Applicant’s own evidence, at most he only suffered a minor injury on his wrist caused by Gangar beating him with a stick (§36).

11.  The Applicant’s contention that he will not have protection in India or that he cannot relocate to other parts of the country is a bare assertion not supported by credible evidence.  Based on credible Country of Origin information, the Board was entitled to conclude that adequate state protection exists notwithstanding certain failings and that as an able-bodied adult, it would not be unduly harsh for the Applicant to relocate to one of the large cities such as Delhi or Kolkata.  After all, there is suggestion that Gangar had any influence or power to pursue the Applicant outside his home village.

12.  In such circumstances, the Board’s Decision satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational. 

13.  At the Hearing, the Applicant further submitted documents showing that he married a Hong Kong resident and that his wife was suffering from anxiety disorder and that the Applicant would like to stay in Hong Kong to take care of his wife.

14.  Regrettably, I am unable to see how this can assist the Applicant’s non-refoulement claim.  It is well established that a family member (who has no right of permanent residence in Hong Kong) of a person (who has a right to remain in Hong Kong) cannot rely on the latter’s own rights under the Bill of Rights or the Basic Law in order to remain in Hong Kong: BI v Director of Immigration [2016] 2 HKLRD 520 at §92(7) and Comilang Milagros Tecson v Director of Immigration (2019)  22 HKCFAR 59 at §§ 57, 65 and 69. 

15.  Hence, the fact that the applicant is married to a permanent Hong Kong resident is irrelevant for the present purposes. For completeness, it does not appear from the documents submitting by the Applicant that the Applicant’s wife is suffering from life threatening conditions. There is also no suggestion that she is not receiving adequate medical treatment from the Hospital Authority.

16.  Accordingly, I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success.  Accordingly, I refuse to grant leave for judicial review.

Conclusion

17.  In the premises, I make an order that the Form 86 be amended as described above and the Leave Application be 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