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HCAL 3405/2019
[2025] HKCFI 4149
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3405 OF 2019
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Harjinder Singh |
Applicant |
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and
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Torture Claims Appeal Board
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Putative Respondent |
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and
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Director of Immigration
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Putative Interested Party |
Application for leave to apply for judicial review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)
Following:
Order by Deputy High Court Judge Michael WONG:
1. On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board” and the name of the putative interested party be amended to “Director of Immigration”.
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 18 November 2019, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 11 November 2019 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003405_2019_files/the_Board's_Decision.pdf
2. The Board found on the evidence before it that the applicant was not entitled to non-refoulement protection in Hong Kong on any of the available grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board refused the applicant’s appeal/petition and confirmed the decision of the Director of Immigration (“the Director”) dated 12 February 2018, which rejected the applicant’s non-refoulement claim.
Amendments
3. In Form 86, the applicant named the Board as both the putative respondent and the putative interested party but spelt the Board’s name wrong. Moreover, only the Director should be named as the putative interested party.
4. This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and the name of the putative interested party to “Director of Immigration”.
The applicant’s case
5. 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.
6. In sum, the applicant claimed for non-refoulement protection because he was involved in a motor vehicle incident (“MVA”) while driving his work truck on the highway from Kotkapura, India, and 4 people including the driver of the other vehicle were killed. He feared that if returned to India, he would be attacked and harmed by the family and friends of the people who died in the MVA. The families of the victims were associated with the Akali Dal Party (“ADP”).
Oral hearing
7. The applicant requested for an oral hearing of the Leave Application. However, the applicant was absent at the hearing on 2 July 2025.
8. As held in Re Abdus Salam [2019] HKCA 1091, an application for leave to bring judicial review should not be dismissed for want of prosecution merely because the applicant failed to attend the oral hearing of the leave application. The correct approach is to treat the applicant as having withdrawn his request for a hearing by reason of the absence at the hearing, and to proceed to determine the leave application on its merits.
9. Thus, this court will proceed to consider the merits of the Leave Application based on the written materials before this court.
Grounds for judicial review
10. 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).
11. The applicant did not advance any ground for his intended judicial review in Form 86, nor in his supporting affirmation. He merely stated in the affirmation that he was not satisfied with the Board’s Decision because his life would not be safe in his home country.
Discussion
12. 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] HKCA524).
13. Thus, despite that the applicant did not advance any valid ground for the intended judicial review, this court will still scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.
14. In assessing the applicant’s appeal/petition, the Board held an oral hearing on 26 September 2019 and the applicant was present. Thus, the applicant did have a chance to present his case to the Board in person.
15. The Board questioned the applicant for details of his claims and found that he was a reliable witness. The Board also found from a number of independent sources that the applicant’s home area had a high incidence of violent personal disputes and that revenge-related violence was not uncommon and frequently occurred without intervention from the authorities. The Board was of the view that this supported the plausibility of the applicant’s claims. Thus, the Board accepted that the applicant’s claimed account of events was based on actual events and fact.
16. In light of its findings, the Board proceeded to assess the applicant’s risks on all the available grounds under the USM. The Board noted significantly that the available evidence did not indicate that the applicant’s involvement in the MVA had come to the attention of the police or Indian authorities or the Indian legal system at any time after it happened. The fear of the applicant was solely the revenge by the families of the victims of the MVA and was thus private in nature.
17. Moreover, the Board had taken into consideration the applicant’s claim that the victims’ families had some connection with ADP. While the Board accepted that there might be some police officers in the applicant’s local area who might be subjected to influence of persons who had connections to local political identities, on the evidence and information before it, the Board did not consider that the police force or the state of India would deliberately withhold protection for the applicant. The feared harm did not fall within the meaning of torture under section 37U(1) of the Immigration Ordinance. His claim for non-refoulement protection on the ground of Torture Risk[1] thus failed.
18. As to the applicant’s BOR 3 Risk[2], the Board found that there was a small though real risk that the applicant would suffer serious physical mistreatment from, by or on behalf of the families of the victims in the MVA if he returned to his home area. However, the applicant had not been charged, prosecuted or convicted of an offence and was not a subject to court summons or warrant and was only wanted by a few people in such a vast country. The Board thus found that there was not a real risk that the applicant could be located by the victims’ families if he stayed outside his home area.
19. Thus, the Board found that internal relocation was viable. It was not unreasonable or unduly harsh for the applicant as a young adult with experience in numerous employment capacities, who had the support of his mother and siblings, to relocate to large cities such as Bangalore, Chennai or Mumbai upon his return to India.
20. The applicant’s claim based on BOR 2 Risk[3] also failed. The Board did not find that the applicant would face a real risk of arbitrary deprivation of life upon his return to India.
21. The Board further found that the applicant’s feared harm was not for a reason under the Refugee Convention’s definition and hence did not fall within the definition of Persecution Risk[4]. As aforementioned, the Board did not consider the police force or the state of India would deliberately withhold protection for the applicant. Thus, reasonable state protection was available to the applicant should he need it.
22. Thus, the Board did thoroughly assess the applicant’s alleged danger in his home country, but found the applicant failed to establish his claim on any of the available grounds under the USM.
23. The assessment of evidence and risk of harm was primarily within the realm of the Board. The Board was entitled to reach its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its decision.
24. 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.
25. In Po Fun Chan v Winni eCheung (2007) 10HKCFAR676, the Court of Final Appeal held that 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
26. For reasons aforesaid, the Leave Application is dismissed.
Dated the 16th day of September 2025
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( Irene LEE )
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 his solicitors must:
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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)).
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Sent/Handed to the applicant/the applicant’s solicitors
on: 16 September 2025
Applicant’s ref. no:
Nil
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Sent/Handed 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:
16 September 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 10467/18/2/351/IN1991
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 3626/1
(formerly RBCZ 3001291/14) (T6S134)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] Risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[2 Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] Risk of violation of right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] Risk of persecution with reference to the non-refoulement principles under Article 33 of the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol.
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