DAVINDER SINGH v. TORTURE CLAIMS APPEAL BOARD

HCAL 247/2021

[2026] HKCFI 1151

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 247 OF 2021

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 the Applicant being absent in open court;

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 47-year-old national of India who arrived in Hong Kong on 24 April 2014 as a visitor with permission to remain as such up to 8 May 2014 when he did not depart and instead overstayed, and more than 1 ½ years later on 13 January 2016 he surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if he returned to India he would be harmed or killed by his family and relatives for converting his religion from Catholic to Sikhism. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born under the name of Komal Masih and raised as a Catholic in a Catholic family in Village Megha, Tehsi Dera Baba Nanak, District Gurdaspur, Punjab, India where he and his family and relatives regularly attended the village church on Sundays and other Christian activities. After leaving school he worked as a general labourer, married his Catholic wife and raised a family with 2 children in his home village.

3.  However, due to influences of the Sikh villagers over the years the Applicant gradually became attracted to Sikhism, and soon he started going to the Sikh temple and attended their religious activities in his home village, much to his family’s anger.

4.  Eventually in 2007 and notwithstanding his family’s objection, the Applicant converted his religion to Sikhism on Baskahi Day, and was given his present name of Davinder Singh which he later applied for its formal registration with the relevant government departments and was placed in official publication in the newspapers.

5.  In 2009 and 2010 he arranged for his wife and children to also convert their religion from Catholic to Sikhism, to even greater anger of the families of both his and his wife’s to the extent that some of the members made threats against him that the Applicant had to move his family out of his home village to take shelter in the Sikh temple in Amritsar before moving on to the one in Gurdaspur, Punjab where he also worked in the temple to support his family.

6.  In 2013 the Applicant moved his family back to Amritsar to stay and work in the Sikh temple there, but one day in January 2014 he was ambushed outside the temple by his uncle and cousin who demanded him to re-convert back to Catholic, and when he refused they then attacked him with wooden sticks until intervened by passersby.

7.  However, after another attack by his uncle and cousin in March 2014 when he suffered cuts and bruises all over his body which subsequently required medical treatments in a local hospital, and before they left his uncle and cousin warned him that next time they would kill him if he still failed to heed their demand to convert his religion back to Catholic, the Applicant became fearful for his life, and so on 23 April 2014 he departed India for Hong Kong when he subsequently overstayed and more than 1 ½ years later raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 8 March 2018 and attended screening interview before the Immigration Department with legal representation.

8.  By a Notice of Decision dated 16 March 2018 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”).

9.  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 his family and relatives 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 any of them to seriously harm or kill him other than to press him to re-convert his religion, that in any event it was a private religious dispute within his family 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 Delhi or Mumbai where it would be difficult if not impossible for anyone to locate him.

10.  On 27 March 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 30 September 2020 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 10 December 2020 his appeal was dismissed by the Board which also confirmed the Director’s decision.

11.  In its decision[1] the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from his family and relatives that caused him to leave his country to come to Hong Kong to seek protection, that his credibility was further undermined by his failure to raise his claim upon first arriving in Hong Kong until more than 1 ½ years later, that even if his account of events prior to his departure of India were true that there was no reliable evidence of any real intention of any members of his family to seriously harm or kill him, and that in any event it was a private religious dispute within his family 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 anyone that his claim for non-refoulement protection failed on all applicable grounds.

12.  On 1 March 2021 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 repeated his claim as before but without putting forth any proper ground for his intended challenge, nor did he subsequently attend the scheduled hearing of his application without any explanation. 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.

13.  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.

14.  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.

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