CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3273 of 2019
|
BETWEEN
|
| |
Sootdhar Harpreet Singh |
Applicant |
| |
and |
|
| |
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
| |
and |
|
| |
Director of Immigration |
Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge K.W. Lung:
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 4 October 2019 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. He appeared before the Court on 17 September 2025.
The applicant
3. The applicant is a national of India. He came to Hong Kong as a visitor on 22 September 2016. He overstayed and surrendered to the Immigration Department on 11 October 2016. He lodged a non-refoulement claim on the basis that, if refouled, he will be harmed or killed by his uncle over a land dispute and political differences.
4. According to the applicant, he had a dispute with his uncle over a piece of land he inherited from his grandfather. His uncle had also asked him to join the Akali Dal Party, of which his uncle was a member. He refused. His uncle, together with 5 other people, attacked him causing him injuries, which took 2 weeks to recover. He had reported the matter to police, which took no action. His father is now farming on the land without pressure from his uncle. Nevertheless, he still fears that he will be harmed if he returns to India.
5. Details of his claim are set out in the Board’s Decision. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003273_2019_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 the Director’s Decision dated 28 February 2018, the Director dismissed the applicant’s claim because it was unsubstantiated. Besides, 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 30 August 2019, the Board conducted an oral hearing for his appeal. He had given oral evidence and answered the Board’s questions.
9. Having considered the evidence, the Board made the following findings.
(1) It accepted the fact of land dispute with his uncle and he was attacked, too.
(2) It did not accept that his uncle would harm him or kill him if he were returned to India.
(3) If did not accept that he will face risk throughout India.
(4) If did not accept that India government will be unwilling to help him. [41] & [65]
(5) Internal relocation will be viable. [84]-[88]
Application for leave to apply for judicial review of the Board’s Decision
10. The applicant has filed Form 86 dated 4 November 2019 for leave to apply for judicial review of the Board’s Decision.
11. The applicant has, insofar as the Board is concerned, raised the following grounds in support of his application.
(1) The adjudicator has relied too much on the country of origin information without taking his personal background into consideration.
(2) The adjudicator adopted improper procedure such that he did not accept his explanation and required him to respond to questions that he was not in a position to offer any response and he failed to take into account the nexus of political parties and official corruption in India.
(3) The Board’s Decision is irrational.
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. Before me, the applicant said that he had told the Board his full story and he still had his problems.
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 the applicant’s bare assertions or opinions without any evidence in support. They are not valid to challenge the Board’s Decision.[1]
16. The applicant has raised no valid ground to challenge the Board’s findings.
17. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.
DISPOSITION
18. I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.
Dated the 15th day of October 2025
| |
(M.O. WONG)(Ms)
for Registrar, High Court
|
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
|
|
|
|
|
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
|
|
Sent to the Applicant
on 15/10/2025
Sootdhar Harpreet Singh
Applicant’s ref. no:
Nil |
|
Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 15/10/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 10858/18/3/310/IN2084
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 501/18 (formerly RBCZ 10707/17)(T6I4)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] The Court of Appeal in Salim Ahmed alias MD Salim [2020] HKCA 244 held:
“20. … … 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: Re Mizan Sikder [2019] HKCA 20 and Ibrahim v Simon Russell [2019] HKCA 1327.” See also Re Haider Khalil [2021] HKCA 223 [16].”