MANJINDER SINGH v. TORTURE CLAIMS APPEAL BOARD

HCAL 348/2020

[2025] HKCFI 4439

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 348 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”, “Director of Immigration” be added as the putative interested party, and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 2 March 2020”.

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 9 March 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of two decisions, namely:-

(1)     “The Decision of the Director of Immigration dated the 3^rd day of September 2018”; and

(2)     “The Decision of the Adjudicator dated the 2^nd day of March 2020”.

2.  The Torture Claims Appeal Board (“the Board”) made a decision dated 2 March 2020 (“the Board’s Decision”) in respect of the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 3 September 2018 (“the Director’s Decision”).  The Board’s Decision can be viewed in the following hyperlink:

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000348_2020_files/the_Board's_Decision.pdf

3.  At the oral hearing before this court on 22 July 2025, this court explained to the applicant that the Director’s Decision was superseded by the Board’s Decision (see Re Moshsin Ali [2018] HKCA 549).  After the explanation, the applicant confirmed with this court that the Leave Application was in respect of the Board’s Decision only.

4.  Thus, it is no longer necessary for this court to deal with the Director’s Decision in the Leave Application.

5.  The Board decided that the applicant’s claims for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”).  Hence, the Board rejected his appeal/petition and confirmed the Director’s Decision.

Amendments

6.  In Form 86, the applicant named “The Director of Immigration; and

7.  The Non-refoulement Claims Petition Office is just an office which provides administrative and secretariat support to the adjudicators of the Board and should not be named as a putative respondent at all. 

8.  The applicant did not name any putative interested party in Form 86, when the Director should be so named.

9.  Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board”, and “Director of Immigration” is added as the putative interested party.

10.  As aforesaid, the decision in respect of which relief is sought in the Leave Application should just be the Board’s Decision.  Thus, on this court’s own motion, it is so amended.

The applicant’s case

11.  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.

12.  In sum, the applicant raised his non-refoulement claim because his life would be in danger had he been sent back to India.  He alleged that he would be harmed or killed by Gurdiyal Singh (“Gurdiyal”) and his friends because of a land dispute.

Oral hearing

13.  The applicant requested for an oral hearing of the Leave Application and his case was heard on 22 July 2025.

14.  In Form 86, the applicant annexed a document with the title “Grounds on which Relief is sought”.  When this court asked the applicant to elaborate on the grounds stated in that document, the applicant merely said that he was relying on the grounds stated in the document and everything was written there.  The applicant confirmed that his story was the same as before and he had nothing further to add.

Grounds for judicial review

15.  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).

16.  The contents of the document annexed to Form 86 with the title “Grounds on which Relief is sought” are reproduced as follows:-

“1. I believe that the Director of Immigration and the Adjudicator of Appeal Board reached the decision(s) wrongly in assessing my Non-refoulement claim. I believe the decisions were not reasonable and fair (as required by the Wednesbury test). Indeed, the right to life is protected under Article 28 of the Basic Law and Article 2 of the Bill of Rights. In practice, the right to life is mainly protected by the criminal law and it must be protected from extra-judicial killings that I may face if I am deported back to my country India.

2. From the Director’s Decision(s), it is evident that the director has failed to appreciate or give the proper importance or weightage to the presence of state Acquiescence in my case. This has indeed led to an unfair outcome of rejecting my non-refoulement claim. I was tortured at the Behest and the state law enforcement agencies as well as those in the high ups of political circles. It is submitted that the state would be rendered liable to me by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence.

3. The Adjudicator acted unreasonable and was procedurally unfair by placing too much reliance on Country of Origin Information but failed to take my personal background and experience into account. Further, I submit that although the Director had listed relevant COIs which support the aversions that the police in my country would not be able to protect. The Director failed to consider or give enough weightage to that evidence and ruled otherwise.

4. I submit that the Director has failed to take such argument into account or that the Director has failed to give enough weight to such argument before reaching the Decisions. This was a clean case of unfair attitude shown by the Director which in itself is enough to render his Decisions void. In Fact, the corruption and incompetency of the administration in my country is still a very serious problem. Various human rights organization has complied reports on the matter which stated testament to my assertions. Further, the director has failed to attain the high standard of fairness required by the Wednesbury test in the decisions with the arguments put forward above. As such, the decisions of the director should be considered unreasonable in the scope of Public Law.

5. The Adjudicator was procedurally improper and/or unfair when assessing whether to accept or not to accept explanations provided by me & unreasonably requires me to response to questions that I was not in a position to offer any response. The Adjudicator failed to take into account the nexus of political parties & official corruption which exists in my country, making the persecution effectively persecution by the State.

6.     The Adjudicator made a ruling to dismiss my appeal/petition in the Torture Claims Appeal Board/Non-refoulement Claims Petition Office based on findings which the Adjudicator ought to allow the appeal/petition, and thus the Decisions was irrational. I humbly ask this Honorable Court to grant leave to have the Decisions judicially reviewed.”

17.  The said document with contents as stated above was in fact used by many applicants in similar applications as their grounds for applying leave to judicially review the Board’s decisions.  It is like a template for such applicants and they just used the grounds stated therein without any regard to their own situations.  Nevertheless, as the applicant is relying on the above grounds to make the Leave Application, this court will still deal with the grounds as discussed below.

Discussion

18.  First of all, some of the above grounds were directed at the Director. As the Director’s Decision was superseded by the Board’s Decision and the applicant has confirmed that the Leave Application is only in respect of the Board’s Decision, this court will consider only those grounds directed at the Board in respect of the Board’s Decision.

19.  Paragraphs 2 and 4 of the applicant’s grounds were directed at the Director.  Hence, they could not be used to challenge the Board’s Decision and can be simply ignored.  Thus, only paragraphs 1, 3, 5 and 6 of the grounds are relevant to the Leave Application.

20.  In paragraph 1 of the grounds, the applicant alleged that the adjudicator of the Board reached the Board’s Decision wrongly and it was not reasonable and fair as required by the Wednesbury test.  However, the applicant did not state how or why the Board’s Decision was wrong, unfair and unreasonable.  It does not help the applicant to establish any ground by just mentioning the right to life in paragraph 1. 

21.  In any event, the Board did assess the applicant’s risk of right to life.  The Board had considered and rejected the claim that there was a real danger the applicant would be killed by Gurdiyal upon his return to India.  The Board found that the applicant’s case was just a case of personal grudge between the applicant and Gurdiyal rather than a case of land dispute, which was the only background of the applicant’s claim.  The Board found nothing in the applicant’s case that supported his claim under BOR 2 Risk[1].

22.  In paragraph 3 of the grounds, the applicant alleged that the adjudicator acted unreasonably and was procedurally unfair by placing too much reliance on country of origin information (“COI”) but failed to take his personal background and experience into account.  However, the applicant did not state which aspects of his personal background and experience had not been taken into account by the Board.

23.  In fact, the Board did consider the applicant’s personal background and experience in reaching its decision.  The Board considered the applicant’s alleged threat from Gurdiyal due to a land dispute but found that the land actually belonged to the applicant’s father.  The only threat from Gurdiyal in relation to the surrendering of the farmland was to the applicant’s father in 2014.  It was clear from evidence that Gurdiyal and his friends attacked the applicant because he injured Gurdiyal’s son on an earlier occasion during a fight.  Gurdiyal and his friends did not threaten the applicant to hand over the farmland or else they would harm or kill him.

24.  The applicant further alleged in paragraph 3 of the grounds that although the Director had listed the relevant COI which supported the aversions that the police in his country would not be able to protect, the Director failed to consider or give enough weightage to those evidence and ruled otherwise.  This is just a vague and general accusation without any specificity. 

25.  The Board did not make such a finding that the police in India could not protect the applicant.  In fact, the Board referred to COI which suggested that corruption was not uncommon among the police force as well as other government officials.  However, COI also showed that there had been reforms going on in India to improve the efficiency and to combat corruption of the police force.

26.  In paragraph 5 of the grounds, the applicant alleged that the adjudicator was procedurally improper and/or unfair when assessing whether to accept or not to accept explanations provided by him, and unreasonably required him to respond to questions that he was not in a position to offer any response.  This accusation lacks any particulars in support.  The applicant did not state which explanations he provided were not accepted by the Board and which questions he was not in a position to offer any response.

27.  There was in fact nothing wrong for the Board to question the applicant extensively to try to understand his claims better and to assess his credibility and his accounts of the events leading to his claim for non-refoulement protection.  The questions were necessary for the Board to fulfil its duty of finding of facts in relation to the applicant’s claim.  This court finds no fault or unfairness in the Board’s questioning of the applicant at all.

28.  The applicant also stated in paragraph 5 of the grounds that the Adjudicator failed to take into account the nexus of political parties and official corruption which existed in his country, making the persecution effectively persecution by the State.

29.  As aforesaid, the problem of corruption in India had been addressed by the Board.  As to the applicant’s risk of persecution, it was the Board’s finding that his case was a mere personal grudge between two private citizens and had nothing to do with his race, religion, nationality, membership of a particular social group or political belief at all.  The treatment the applicant received before he left India did not fall within the meaning of “torture” under Section 37U(1) of the Immigration Ordinance.

30.  In paragraph 6 of the grounds, the applicant simply alleged that the adjudicator ought to allow the appeal/petition and the Board’s Decision was irrational.  There was no particulars or reasons given to say how or why the Board’s Decision was irrational.

31.  The Board had in fact provided a very detailed analysis of the applicant’s claim and the reasons why the Board concluded that the applicant failed on all the applicable grounds under the USM to claim for non-refoulement protection.

32.  As held by the court of appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”.  Thus, none of the aforesaid paragraphs in the grounds could establish any valid ground to challenge the Board’s Decision when they are so vague and general without any requisite particulars related to the applicant’s case.

33.  It is therefore this court’s finding that the applicant has failed to establish any valid ground for challenging the Board’s Decision.

34.  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 [2018] HKCA 524).

35.  In assessing the appeal by the applicant, the Board held an oral hearing on 16 December 2019.  The applicant was present and was given the chance to present his case to the Board in person. 

36.  As can be seen from the Board’s Decision, the Board had considered the applicant’s case carefully but found that the applicant’s alleged threat did not arise out of a land dispute.  There was no evidence suggesting that the applicant would suffer from any ill-treatment, torture, arbitrary deprivation of life or persecution if he were to be sent back to India.

37.  Further, the Board found no evidence suggesting that Gurdiyal and his friends had their power and influence beyond the applicant’s home village.  Although the applicant had limited work experience, with his 12 years of education and at his young age, there should be lots of opportunities for the applicant to find a job in another city to support himself in India.  Internal relocation was thus a viable option for the applicant to avoid Gurdiyal and his friends if he was to return to India.

38.  The finding of facts 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.

39.  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. 

40.  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

41.  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