TALWINDER SINGH v. TORTURE CLAIMS APPEAL BOARD

HCAL 2000/2020

[2025] HKCFI 5255

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2000 OF 2020

Application for leave to apply for judicial review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

	consideration of the documents only; or
	consideration of the documents and oral submissions by the applicant in open court;

1.   On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board” and the name of the putative interested party be amended to “Director of Immigration”.

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

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated and filed on 6 October 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 28 September 2020 (“the Board’s Decision”).  The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL002000_2020_files/the_Board's_Decision.pdf

2.  The Board found that the applicant’s claims for non-refoulement protection were not made out on any of the applicable grounds under the Unified Screening Mechanism (“the USM”).  Hence, the Board confirmed the decision of the Director of Immigration (“the Director”) dated 4 July 2018 (“the Director’s Decision”), which rejected the applicant’s non-refoulement claim.

Amendments

3.  In Form 86, the applicant named the Board as both the putative respondent and the putative interested party but spelt the Board’s name wrong.

4.  In fact, the Board should only be the putative respondent and the Director should be the putative interested party.

5.  Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and to amend the name of the putative interested party to “Director of Immigration”.

The applicant’s case

6.  It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

7.  In sum, the applicant claimed for non-refoulement protection because if returned to India, he feared being harmed or killed by a gang of drug traffickers as he reported them to the police.

Oral hearing

8.  The applicant requested for an oral hearing of the Leave Application. His case was heard on 19 August 2025.

9.  At the hearing, when this court asked the applicant for the grounds for his intended judicial review, he replied that he did not want to go back to India.  He said that he was beaten up and threatened in Hong Kong by a man named Ahman and a few other people living downstairs in the same building.  When this court asked him whether his enemies were in Hong Kong, he simply replied that his enemies could do anything to him at any moment and he was very scared.

Grounds for judicial review

10.  The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

11.  However, the applicant failed to advance any grounds for his intended judicial review in Form 86, nor in his supporting affirmation dated 6 October 2020.  He only mentioned in his affirmation that he could not go back to his country at the moment because his life was not safe there.

12.  As aforesaid, the applicant did not advance any valid ground at the oral hearing before this court either.  He merely repeated that he did not want to go back to India and mentioned that he was attacked and threatened in Hong Kong, which are irrelevant to the Leave Application.

Discussion

13.  First of all, if the applicant intends to submit new evidence to this court for consideration of his non-refoulement claim, it is not permissible. As held in Trinh Thuy Huyen v Torture Claims Appeal Board [2024] HKCA 1090, the Board had no duty to make investigation into any matter without the applicant raising it and it should not be considered by this court at this stage.

14.  Further, as held in Nupur Mst v Director of Immigration [2018] HKCA 524, due to the difference in the role of the court in a judicial review and the role of the primary decision-makers, an applicant cannot rely on materials which have not been produced before the Board or the Director to contend that the latter erred in not taking those into account unless the decision-makers have a positive duty to elicit such materials on their own volition. 

15.  Thus, the applicant cannot rely on any matters not placed before the Board, such as the attack and threats he allegedly encountered in Hong Kong, as a ground for his intended judicial review, and there is no reason for this court to review or re-assess his danger.

16.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness, or irrationality (see Nupur Mst v Director of Immigration, supra).

17.  Thus, even though the applicant has failed to establish any valid ground for challenging the Board’s Decision, this court will still scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.

18.  This court noted that the Board assessed the applicant’s appeal/petition without an oral hearing and adopted the approach of a re-hearing by examining all the documentary evidence afresh.  The Board’s reasons for not having an oral hearing were laid out in details in paragraph 7 to 12 of the Board’s Decision.  Simply put, the Board accepted the factual basis of the applicant’s claims without reservation, and the Board considered that the necessary standard of fairness could still be maintained.

19.  There is no absolute right to an oral hearing.  The question of whether an oral hearing should be afforded must be decided by the adjudicator at the appeal/petition stage after considering all relevant circumstances.  Ultimately, what is in issue is the question of fairness, and in the present context, high standards of fairness are involved (see St v Betty Kwan and the Director of Immigration, CACV 115/2013).

20.  Thus, it was not a must for the applicant to have an oral hearing before the Board.  The Board had considered all the matters raised by the applicant in relation to his non-refoulement claim without reservation.  These included the two attacks he encountered by unknown, masked men and the injuries sustained as a result of the second attack, his doubt about the willingness and capabilities of the Indian police to protect him and the reasons he gave for not being able to relocate to other places in India.

21.  This court agrees with the Board that an oral hearing was not necessary.  There was no procedural unfairness to the applicant when the factual basis of the applicant’s claims was accepted without reservation.

22.  The Board had gone through very extensive country of origin information (“COI”), which were all update and fully referenced, in order to assess the truthfulness and seriousness of the problem of drug trafficking and the involvement of politicians and corrupt police officers in these criminal acts in India, especially in Punjab, which was the applicant’s home area.  The Board found COI which indicated that there was a problem with corruption in India and within the police generally.

23.  Nevertheless, the Board also found COI regarding the changes which had occurred in Punjab since the applicant left, including a change of government in 2017 which appeared to be making concerted efforts in addressing the drug problem, organized criminal drug cartels and corruption within the police and government.  Thus, reasonable state protection should be available to the applicant should he require it.

24.  Having noted the general situation regarding the issue of effective state protection, the Board found it difficult to know whether the people who had threatened the applicant in the past were still at large.  Based on the independent COI that were considered, the Board was not satisfied that the applicant could safely return home and his risk of harm was not imagined.  It might be that under the new government he could seek protection and redress.  However, that was not assured and there continued to be a risk for the applicant.

25.  However, the Board noted that the applicant had relocated for six to seven months to stay with his paternal aunt in Ludhiana and did not experience any problems whilst there.  This indicated that the applicant could relocate to another area and remain safe, especially as nearly 5 years had elapsed since the events described in his non-refoulement claims.  The Board was satisfied that that was a real and viable option for the applicant.

26.  The Board adopted the principles held in Januzi v Secretary of State for the Home Department [2006] UKHL 5 in assessing whether the applicant would be safe in another part of India and whether it would be reasonable in all the circumstances to expect him to relocate there.

27.  In its consideration of the viability of internal relocation, the Board had duly considered the possibility of the applicant being located by his enemies, even with the assistance of the police, but found that to be highly unlikely.  Further, the applicant had not indicated that he had any criminal history and hence he would not be included in any police database.  The law in India provided for freedom of movement and citizens had the right to reside and settle in any part of the country.  There was absolutely no evidence to suggest that the individuals who had previously attacked and threatened the applicant had influence outside his local area.

28.  In assessing the reasonableness for the relocation option, the Board not only took into consideration the applicant’s work experience which he could use to establish himself elsewhere but further considered his ethnical background as a Sikh.  The Board found that there were Sikhs living throughout the country and if ethnic background were a consideration, it would be relatively easy for the applicant to relocate to an area where there was a Sikh community.  The applicant also appeared to have family who could assist him.

29.  In terms of the applicable grounds under the USM, the Board found that there was no element of consent or acquiescence of a public official or other person acting in an official capacity in the ill-treatment of the applicant.  The crucial element of Torture Risk[1]was lacking.  The Board also concluded that the applicant had not been subjected to pain or suffering sufficiently serious to reach the minimum level of severity required to bring BOR 3 Risk[2] into play.  The applicant was not threatened or ill-treated for a Convention reason, and thus could not satisfy the requirement under Persecution Risk[3]. The Board also found that there was not a real risk the applicant would be arbitrarily deprived of his life or be subjected to the death penalty, ie there was no BOR 2 Risk[4]. The applicant could reasonably relocate to another part of India to avoid the harm he faced.

30.  Thus, after due consideration of the law, extensive COI materials and all the evidence as presented by the applicant, the Board found that the applicant was not entitled to non-refoulement protection on any of the applicable grounds under the USM.

31.  The finding of facts, including the assessment of risk of harm and COI materials, was solely within the ambit of the Board.  The Board was entitled to make its own decision.  This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

32.  Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof.  The Board also correctly identified the issues and observed a very high standard of fairness.  This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision. 

33.  As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success.  It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

34.  For reasons aforesaid, the Leave Application is 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