SUKHCHAIN SINGH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 450/2025

[2025] HKCFI 2838

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 450 OF 2025

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BETWEEN

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J U D G M E N T

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 22 January 2025 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing the appeal against the Director’s Decision as described below.

2.  The applicant asked for a hearing. However, he as absent at the hearing on 26 May 2025. I shall deal with his application on the papers.

The applicant

3.  The applicant is a national of India. According to records, the applicant was refused permission to land in Hong Kong on 20 September 2024. In due course, the applicant lodged his non-refoulement claim.

4.  The applicant’s claim was based on his fear of being harmed or killed by the head of his village (“Amma”) and his son (“Boota”) because the applicant had assaulted Amma.

5.  According to the applicant, in 2020, the applicant and his father had borrowed a total of 800,000 Indian Rupees from Amma, and the farmland was used as collateral for a loan. There was a conflict with Amma and in December 2023, there was a fight between the applicant and Amma. Following the fight, there were 2 incidents involving Boota assaulting the applicant. Amma had also threaten that he would kill the applicant. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 7 November 2024 by the Director (the “Director’s Decision”).

The Director’s Decision

6.  The Director considered the applicant’s claim in relation to the following risks:

(a) risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

(b) risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

(c) risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

(d) risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

7.  By way of the Director’s Decision, the Director assessed the applicant’s claim and dismissed his claim. In summary, the Director found that the level of risk of harm is assessed to be low, that the assertion of being killed by Amma and Boota was too far-fetched, that the dispute was private in nature, and that no evidence to show that Amma and Boota have the ability to locate the applicant nationwide [12-14]; that state protection was available [15-18]; and that internal relocation alternatives were available and reasonable [19-21].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board. On 13 January 2025, the Board conducted an oral hearing for his appeal. At the hearing, the Board found the applicant’s answers to be unbelievable [63-70].

9.  Having considered the evidence, the Board found that the information and evidence given by the applicant was inconsistent, not believable, and had no doubt that he was not an honest witness [71]. In any event, internal relocation was not unduly harsh and available to the applicant [73-79]. In conclusion, the Board held the applicant’s claim failed under all applicable grounds. It therefore dismissed his appeal and confirmed the Director’s Decision.

Application for leave to apply for judicial review of the Board’s Decision

10.  The applicant filed the Form 86 on 17 February 2025 for leave to apply for judicial review of the Board’s Decision. The applicant’s grounds can be summarised as follows: the Director and Board reached wrong decisions and the decisions were not reasonable and fair, there was a clean case of unfair attitude shown by the Director, and the Board was procedurally improper and/or unfair. No particulars or details were provided in support of the grounds.

11.  In the applicant’s affirmation in support of his application, the applicant exhibited the Board’s Decision but did not provide any further elaboration on his above grounds or any details or particulars to his bare assertions.

DISCUSSION

12.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

13.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

14.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

15.  The applicant has raised no valid ground to challenge the Board’s findings.

16.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

17.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.