SHINGARI DHEERAJ v. TORTURE CLAIMS APPEAL BOARD

HCAL 786/2021

[2026] HKCFI 1153

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 786 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 42-year-old national of India who had previously attempted to enter Hong Kong but was refused by the Immigration Department then on 16 July 2015 did so by illegal entry from China, and on 6 August 2015 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 wife’s brother who disapproved of their marriage. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Adampur, Jalandhar, Punjab, India. After leaving school he assisted in his father’s garment business in his home district, and dated his wife from the same neighbourhood but which was not approved by her family.

3.  Due to her family’s objection the Applicant and his wife eloped to another town to get married before returning to their home district to reside with the Applicant’s family.

4.  One day in early 2007 while strolling in a park with his wife, the Applicant was approached by several men sent by his brother-in-law with a demand to divorce his wife, and when the Applicant refused, those men then attacked him with wooden sticks until his wife screamed for help, and before they left, those men warned the Applicant that next time they would kill him if he still refused to divorce his wife.

5.  After several further attacks by men sent by his brother-in-law, the Applicant moved his family to Ludhiana to avoid further attacks by his brother-in-law, and ran a garment shop there to support the family, but in November 2012 when he heard that his brother-in-law had located their whereabouts, the Applicant then moved his family to Mumbai to take shelter in an uncle’s place, but later when he heard that his brother-in-law was still looking for him everywhere, the Applicant departed India on 5 May 2013 for Hong Kong but was refused entry by the Immigration Department and was repatriated to India shortly thereafter.

6.  Upon returning to India the Applicant returned to his uncle’s place in Mumbai, but as he still feared of being located by his brother-in-law, he again departed India on 6 July 2015, and so on he departed 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 14 January 2021 and attended screening interview before the Immigration Department with legal representation.

7.  By a Notice of Decision dated 2 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”).

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 his brother-in-law and followers 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 his brother-in-law to seriously harm or kill him other than some angry words and empty threats, that in any event it was a private personal dispute between him and his brother-in-law 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 1.3 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 his brother-in-law to locate him.

9.  On 10 March 2021 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 April 2021 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board and with submissions on his behalf by his lawyer. On 20 May 2021 his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  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 brother‑in‑law that caused him to leave his country to come to Hong Kong to seek protection, 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 his brother-in-law to seriously harm or kill him other than to put pressure on him to divorce his wife, and that in any event it was a private and personal dispute between him and his brother-in-law 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 brother-in-law that his claim for non-refoulement protection failed on all applicable grounds.

11.  On 28 May 2021 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge:

(1)  That the Board reached the decision wrongly in assessing his non-refoulement claim;

(2)  That the Board’s decision was not fair or reasonable as required by the Wednesbury test in failing to recognize that his life must be protected by the criminal law from extra‑judicial killings that he may face if deported back to his home country.

12.  These are however just some bare and vague assertions of the Applicant containing a few key words or phrases but without any necessary or relevant particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or what relevancy was extra-judicial killings to the Applicant’s case when on the factual basis of even his own case that it was a private dispute between him and his brother‑in‑law only without any official involvement or political element at all. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, nor did he subsequently attend the scheduled hearing of his application without any explanation, I do not find either of them reasonably arguable for his intended challenge.

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 even 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