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

HCAL 518/2025

[2025] HKCFI 3968

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 518 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 Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

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 was absent at the hearing on 28 July 2025.  I shall deal with his application on the papers.

The applicant

3.  The applicant is a national of India.  On 17 September 2024, he arrived in Hong Kong as a visitor but was refused permission to land on the same date. In due course, he lodged a non-refoulement claim in Hong Kong.

4.  The applicant’s claim was based on his fear of being harmed or killed by members of the Shiromani Akali Dal party (“SAD”) and their affiliates (collectively referred to as “Enemies”).

5.  According to the applicant, he was and still is a supporter of the Aam Aadmi Party (“AAP”).  From 2022 to 2024, the applicant was threatened by his Enemies to leave AAP.  In June 2024, the applicant had a dispute with an SAD supporter, which led him relocating to Tangra Village in the same month.  He did not report the matter to police and was never harmed physically.  Details of his claim are set out in the Board’s Decision.  See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL000518_2025_files/the_Board's_Decision.pdf.

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 Notice of Decision dated 5 November 2024 (“the Director’s Decision”), the Director dismissed the applicant’s claim because it was unsubstantiated. Besides, the Director found that state protection is available and internal relocation is viable, which will mitigate or neutralize the applicable risks.

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board. On 17 January 2025, the Board conducted an oral hearing for his appeal. The applicant had given oral evidence and answered the Board’s questions.

9.  Having considered the evidence, the Board found that:

(1)  his evidence was inconsistent and questionable, based upon speculation; [89]

(2)  his evidence on the facts in support of his claim was not accepted; [90] and

(3)  he will not be subjected to any real risk of harm if he returns to India. [90]

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

10.  The applicant has filed Form 86 dated 26 February 2025 for leave to apply for judicial review of the Board’s Decision.

11.  The applicant has raised grounds in support of his application, which are, insofar as the Board is concerned, summarized as follows:

(1)  the Board’s Decision was wrong as it was not reasonable and fair;

(2)  the Board failed to take his personal background and experience into account;

(3)  excessive reliance on country of origin information; and the Director’s failure to attain a high standard of fairness; and

(4)  the Board demanded him to answer questions that he was not in a position to respond.

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.  Those grounds under paragraph 11 are bare assertions without any evidence in support, which are not valid to challenge the Board’s Decision.

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.

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