RANJIT SINGH v. TORTURE CLAIMS APPEAL BOARD

HCAL 1693/2021

[2025] HKCFI 5478

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1693 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 oral submissions by the Applicant in open court / the Applicant being absent in open court;

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 31-year-old national of India who arrived in Hong Kong on 6 April 2015 as a visitor with permission to remain as such up to 20 April 2015 when he did not depart and instead overstayed, and on 21 April 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 paternal uncle over some land dispute within their family. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in India where his father and paternal uncle inherited some farmland in his home village from his grandfather but that his uncle coveted his father’s share of the land and demanded for a swap of their share of the land, but when it was refused by his father, it led to frequent conflicts between them within the family.

3.  One day in October 2014 while he was working on his father’s farmland, the Applicant was attacked by his uncle who was drunk and stabbed him on his left leg with a dagger until he was restrained by some neighbors, and before he left his uncle warned the Applicant that next time he would kill him, whereupon the Applicant was then brought by his father to a hospital for treatments and was hospitalized for some 3 weeks.

4.  Upon his discharge from hospital, the Applicant’s parents decided that it was not safe for him to remain in India, and so on 6 April 2015 they arranged for the Applicant to leave India for Hong Kong where he overstayed and subsequently raised his non‑refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 14 November 2018 and attended screening interview before the Immigration Department with legal representation.

5.  By a Notice of Decision dated 28 December 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”).

6.  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 paternal uncle upon his return to India as low due to the low intensity and frequency of past ill-treatment from his uncle, that there is no evidence of any real intention of his uncle to seriously harm or kill him, that in any event it was a private land dispute between his uncle and his father within the 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 where it would be difficult if not impossible for his uncle to locate him.

7.  On 9 January 2019 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 16 June 2021 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 2 December 2021 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision[1] the Board accepted the Applicant’s claim of fear of harm from his uncle who was after his father’s farmland in his home village but found no reliable evidence of any real intention of his uncle to seriously harm or kill him other than to press his father to give up on the land, and that in any event it was a private land dispute between his father and his uncle within the 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 his uncle that his claim for non-refoulement protection failed on all applicable grounds.

9.  On 15 December 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 his supporting affirmation of the same date to which he just attached a copy of the decision but without putting forth any proper ground for his intended challenge. 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.

10.  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.

11.  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.

12.  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.

13.  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