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

HCAL 308/2025

[2025] HKCFI 2373

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 308 of 2025

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

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

Leave to apply for Judicial Review be refused.

Observation for the Applicant:

Introduction

1.  This is an application by Mr Kanwaljit Singh (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 15 January 2025 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 29 October 2024 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

Background of the Applicant and the Claim

2.  The Applicant is an Indian born on 1 May 1986 in Amritsar, Punjab Province, India. He received about 10 years of education and had about 16 years of work experience.

3.  The Applicant claimed that his uncle in India (“Uncle”) would harm or kill him because of a land dispute. He claimed that his father (“Father”) borrowed money from Uncle in 2000 (“Loan”) and pledged 2 acres of family land (“Land”) as collateral. Father paid back the principal of the Loan in around early 2006 but Uncle refused to return the Land and instead farmed on it.

4.  Father and Uncle got into heated arguments multiple times and Father became concerned with the Applicant’s safety. Father sent him away to Malaysia between 2007 and 2009. The Applicant came back to India in 2010 to farm the Land and got into heated arguments with Uncle. Father sent the Applicant away again in 2013 to work in Dubai. Between 2013 and 2019, he worked in Dubai, Bahrain and India.

5.  The Applicant returned to his home in late 2019 and got into an argument with Uncle. One of Uncle’s men drove a tractor and ran over the Applicant’s leg (“Attack”). Father filed a complaint with the local police but the police took no action. The Applicant believed Uncle used his wealth and political connection to influence the police.

6.  The Applicant went to Brunei in February 2020. In early 2021, he learnt that his brother (“Brother”) was killed in late 2020 during an altercation on the Land. Brother was beaten with wooden sticks and he died from the injuries. Someone also fired a gun during the altercation, although it was not directed towards Brother. The Applicant’s family was asked to cremate Brother’s body immediately without a post-mortem examination.

7.  The Applicant returned to India towards the end of 2022. He became a target of Uncle because he was the remaining child of Father and Father was too old. Uncle kept pressuring the Applicant to give up all 8 acres of land owned by his family. Uncle verbally threatened him but did not use violence on him.

8.  On a day in mid-2024, Uncle went to the Applicant’s home with 8 men. Uncle fired shots in the air and threatened to kill the Applicant unless he gave up the family land. On 3 July 2024, the Applicant fled to Thailand to seek asylum but was told that there was no asylum protection in Thailand. He returned to India. He flew to Hong Kong from India in early September 2024 but was refused permission to land. He then lodged the Claim.

9.  The Director assessed the Claim on the following grounds under the unified screening mechanism (“USM”):

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

(b)  risk of violation of right to life as a non-derogable and absolute right under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“BOR” and “BOR 2”);

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

(d)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees (“Refugees Convention”).

10.  By the DOI Decision, the Director refused the Claim. The Applicant later filed an appeal/petition to the Board (“Appeal”). By the Board’s Decision, the Board affirmed the DOI Decision. The Board rejected and dismissed the Appeal.

11.  On 28 January 2025, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the Board’s Decision. The Applicant filed his supporting affirmation on the same day (“Supporting Affirmation”). In the Form 86, the Applicant named the Board as the proposed respondent and the Director as the interested party.

Legal principles applicable to judicial review

12.  In a judicial review, the court does not step into the shoes of the decision makers.

13.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“The role of the Court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI [i.e. country of origin information] 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: see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.”

14.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

15.  In the Form 86, the Applicant put forward the following grounds for his intended judicial review:

(1)  the DOI Decision and the Board’s Decision were not reasonable and fair as required by the Wednesbury test;

(2)  the Director failed to appreciate or give proper weight to the presence of state acquiescence;

(3)  the Board placed too much reliance on country of origin information (“COI”) but failed to consider the Applicant’s personal background and experience. The Director failed to give enough weight to COI which supported the Applicant’s case of inadequacy of state protection;

(4)  this was a clean case of unfair attitude shown by the Director; and

(5)  the Board’s Decision was irrational.

16.  In the Supporting Affirmation, the Applicant only exhibited the Board’s Decision but did not put forward any ground for his intended judicial review.

17.  The Applicant raised various complaints against the Director in the Form 86. However, this is an application for leave for judicial review of the Board’s Decision, not the DOI Decision. Furthermore, as pointed out in §6 of the Board’s Decision, hearing of the Appeal before the Board was by way of a rehearing of the Claim. Errors (if any) in the DOI Decision will not constitute grounds for judicial review of the Board’s Decision.

18.  In the Form 86, the Applicant complained that the Board placed too much reliance on COI but failed to consider his personal background and experience. No particulars were provided in the Form 86 or the Supporting Affirmation for such contention. The Applicant attended the court hearing of 15 April 2025 (“Court Hearing”) but was still unable to provide any particulars for his such complaint. In fact, in §§10-18 and 21-31of the Board’s Decision, the Board had set out the Applicant’s case and evidence including his personal background and experience. No doubt, the Board had taken such matters into account when determining the Appeal.

19.  The aforesaid complaints raised by the Applicant in the Form 86 were bare assertions without particulars or specifics. They were not supported by evidence and are not reasonably arguable in his intended judicial review.

20.  The Board noted that according to the Applicant, his family had the means to send him abroad but could not afford a lawyer to handle the land dispute with Uncle. It further noted that according to the Applicant, Uncle targeted him and killed Brother due to the land dispute but spared Father (owner of the Land) for about 20 years. The Board found the Applicant’s such claims “not credible” and “absurd”.

21.  The Board found the Applicant’s claims not credible in their entirety. His claim to fear that he would be seriously harmed or killed by Uncle over a land dispute was not credible and he fabricated the claim for the purpose of making the non-refoulement protection application. The Board found that the Applicant’s claim to have been beaten and threatened by Uncle and his men was untrue. The Board also found that the Applicant had failed to establish that Brother died anything other than a natural death. The Board found that there was no basis for the Applicant’s claim that he would be harmed by Uncle or his men if he were to return to India.

22.  The Board further found that even if the Applicant’s claims were true, he could safely relocate to Mumbai, Delhi or Kolkata to avoid the perceived risks from Uncle.

23.  As pointed out in the Nupur Mst case (supra), assessment of evidence, COI materials, risk of harm and viability of internal relocation were primarily within the province of the Board. The court would not intervene by way of judicial review unless there were errors of law or procedural unfairness or irrationality in the decision of the Board.

24.  In disputing the Board's assessment on evidence, credibility and risk of harm, the Applicant seeks to challenge the findings of fact of the Board which is not permissible in a judicial review unless in making such findings there were errors of law or procedural unfairness or irrationality. I find none in this case.

25.  At the Court Hearing, the Applicant produced the death certificate of Brother (“Death Certificate”) and a document said to be the First Information Report on Brother’s death (“Document”) to support his case. The Death Certificate had previously been produced to and considered by the Board (§17 of the Board’s Decision). The Document had not previously been placed before the Board. It is fresh evidence.

26.  As pointed out by the Court of Appeal in Kwok Hay Kwong v Medical Council of Hong Kong [2007] 3 HKLRD 213 at 219 that the conditions in Ladd v Marshall [1954] 1 WLR 1489 on the admission of fresh evidence on appeal were equally applicable to judicial review. The conditions were: (a) that the evidence could not have been obtained with reasonable diligence for use at the hearing; (b) the evidence was such that it would probably have an important influence on the result of the case; and (c) the evidence must be apparently credible.

27.  The Document was dated 20 May 2020, i.e. more than 4 years before the Applicant’s coming to Hong Kong and lodging the Claim in September 2024. The Applicant explained that he did not submit the Document to the Board at the hearing of the Appeal as he did not know that he needed to produce it. I do not accept such explanation. It was noted in §6 of the DOI Decision that the Applicant was represented by the Duty Lawyer Service in lodging the Claim and he attended the screening interview with his legal representative on 21 October 2024. There was no reason why the Document could not be obtained with reasonable diligence for use at the screening interview or at the hearing before the Board on 12 December 2024.

28.  The Document put to its highest only showed that Father made a report against Uncle in respect of the death of Brother. It did not prove that Brother was killed by Uncle nor that his death was in relation to the land dispute claimed by the Applicant. Such document would not have an important influence on the result of the case.

29.  The Applicant had told the Board at the hearing of the Appeal about a First Information Report on Brother’s death but “said that the document was not an FIR, but rather a copy of his father’s letter.” (§28 of the Board’s Decision) This was inconsistent with the Applicant’s claim that the Document was a First Information Report. As such, I do not accept that the Document was apparently credible. In any event, it still fails to meet the other two Ladd v Marshall conditions for admission as fresh evidence in the Applicant’s intended judicial review. The Document would not be admitted as evidence in this intended judicial review. In any event, the matters stated in the Document were matters known to the Board (§14 of the Board’s Decision). It does not take the Applicant’s case any further.

30.  Having rigorously examined the Board’s Decision with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the relevant grounds for seeking non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness.

31.  The Board found that there were no substantial grounds for finding that there was a real risk that the Applicant would suffer persecution within the meaning of the Refugees Convention should he return to India. The Board did not accept the Applicant’s claim that he faced a real risk that his right to life under BOR 2 would be violated by Uncle or his men or anyone else or that he would suffer severe physical or mental pain amounting to BOR 3 risk or torture risk at the hand of Uncle or his men or anyone else should he return to India.

32.  It was on such basis that the Board found that the Applicant had failed to prove his entitlement to non-refoulement protection under any of the applicable grounds under the USM. These were findings of fact which were exclusively within the province of the Board, which the court in a judicial review will not interfere save when such findings involved error of law, procedural unfairness or irrationality. In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings for the Claim. The Board’s Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The proposed judicial review is not reasonably arguable and has no realistic prospects of success.

Conclusion

33.  In the premise and having considered the Board’s Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review.

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