CHAMKAUR SINGH v. TORTURE CLAIMS APPEAL BOARD

HCAL 312/2020

[2025] HKCFI 3942

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 312 OF 2020

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

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

1.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, “Director of Immigration” be added as the putative interested party, and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 24 February 2020”.

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 5 March 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of two decisions, namely:-

(1)  “The Decision of the Director of Immigration dated the 15^th November 2019”; and

(2)  “The Decision of the Adjudicator dated 24^th February 2020”.

2.  The Torture Claims Appeal Board (“the Board”) made a decision dated 24 February 2020 (“the Board’s Decision”) in respect of the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 15 November 2019 (“the Director’s Decision”). The Board’s Decision can be viewed in the following hyperlink:

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000312_2020_files/the_Board's_Decision.pdf

3.  At the oral hearing before this court on 12 June 2025, this court explained to the applicant that the Director’s Decision was superseded by the Board’s Decision (see Re Moshsin Ali [2018] HKCA 549). After the explanation, the applicant confirmed with this court that the Leave Application was in respect of the Board’s Decision only.

4.  Thus, it is no longer necessary for this court to deal with the Director’s Decision in the Leave Application.

5.  The Board decided that the applicant’s claims for non-refoulement protection were not made out on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board confirmed the Director’s Decision.

Amendments

6.  In Form 86, the applicant named “The Director of Immigration; and
The Adjudicator of the Non-refoulement Claims Petition office appointed to determine the Applicant’s Petition” as the putative respondents. However, as confirmed by the applicant at the oral hearing, only the Board’s Decision should be considered in the Leave Application. Thus, the putative respondent should only be the Board.

7.  The Non-refoulement Claims Petition Office is just an office which provides administrative and secretariat support to the adjudicators of the Board and should not be named as a putative respondent at all.

8.  The applicant did not name any putative interested party in Form 86, when the Director should be so named.

9.  Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board”, and “Director of Immigration” is added as the putative interested party.

10.  As aforesaid, the decision in respect of which relief is sought in the Leave Application should just be the Board’s Decision. Thus, on this court’s own motion, it is so amended.

Procedural history of the applicant’s non-refoulement claim

11.  The applicant raised his first non-refoulement claim in a statement dated 28 August 2016 (“the 1^st non-refoulement claim”). The 1^st non-refoulement claim was rejected by the Director on 18 May 2017 and the Director’s decision was confirmed by the Board on 25 October 2017.

12.  On 27 November 2017, the applicant filed an application for leave to apply for judicial review in respect of the Board’s decision dated 25 October 2017 under case no HCAL 956/2017 (“the 2017 Leave Application”).

13.  However, the applicant filed an affirmation on 9 April 2018 in HCAL 956/2017 to apply for leave to withdraw the 2017 Leave Application, which was granted by DHCJ Bruno Chan on 13 April 2018.

14.  The applicant was removed to India by the Hong Kong immigration authorities on 7 June 2018, but the applicant returned to Hong Kong illegally via mainland China in July 2019.

15.  He then lodged his current non-refoulement claim by way of written representation on 23 July 2019, which was rejected by the Director’s Decision. The applicant lodged his appeal/petition against the Director’s Decision on 22 November 2019, but as aforesaid, the Director’s Decision was confirmed by the Board’s Decision.

16.  As can be seen from the Board’s Decision, in determining the applicant’s current non-refoulement claim, the Board had made reference to and taken into consideration all the available information and records, including those materials relating to the 1^st non-refoulement claim, which is permitted by virtue of section 37ZP(3) of the Immigration Ordinance, Cap 115.

The applicant’s case

17.  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.

18.  In sum, the applicant raised the 1^st non-refoulement claim because his life was under grave danger in India. A person from his village called Bhupinder Singh Bhalwan (“Bhupinder”), who was a candidate of Shromani Akali Dal during the elections in September 2011, had threatened to kill him as he supported another candidate called Randhir Singh Dhiro Majra from the Congress Party.

19.  The applicant raised his current claim for non-refoulement protection because his enemies intentionally cheated him to make him go back to India. The enemies tried to hunt him down and attacked his family home when he returned. He had to keep relocating to avoid them, and had to temporarily break his relationship with his wife to keep his wife and child safe. His family had also disowned him for their own safety. Before he came to Hong Kong, he fired two shots at Bhupinder’s son. There was a First Information Report against him on 2 charges: (1) illegal possession of offensive weapon; and (2) attempted murder. Therefore, he became a wanted person in India, and he feared being harmed or killed by Bhupinder and/or his men if he were to return to India.

Oral hearing

20.  The applicant requested for an oral hearing of the Leave Application and his case was heard on 12 June 2025.

21.  In Form 86, the applicant annexed a document with the title “Grounds on which Relief is sought”. When this court asked the applicant to elaborate on the grounds stated in that document, the applicant admitted that he did not prepare the document himself, but he paid a Pakistani woman to prepare the document. However, he had no idea what were written in the document and he confirmed with this court that he was not relying on the grounds stated in the document as he had no knowledge of the grounds at all.

22.  The applicant did not advance any other ground at the oral hearing either, but just said that he could bring proof next time.

Grounds for judicial review

23.  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).

24.  The document annexed to Form 86 with the title “Grounds on which Relief is sought” was in fact used by many applicants in similar applications as their grounds for applying leave to judicially review the Board’s decisions. It is like a template for such applicants and they just used the grounds stated therein without any regard to their own situations.

25.  Nevertheless, as the applicant had confirmed at the oral hearing before this court that he did not want to rely on those grounds mentioned in the document to make the Leave Application, it is not necessary for this court to deal with such grounds, which cannot be genuine in any event.

Discussion

26.  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] HKCA 524).

27.  Thus, even though the applicant has failed to advance any valid ground for challenging the Board’s Decision, this court will still scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.

28.  In assessing the appeal by the applicant, the Board held an oral hearing on 20 January 2020. The applicant was present and was given the chance to present his case to the Board in person.

29.  It is clear that the Board had carefully considered all the matters claimed by the applicant that gave rise to his non-refoulement claim, including his alleged involvement with the Congress Party in the 2011 election. The Board found numerous inconsistencies in the applicant’s oral and written evidence. In relation to each of the significant inconsistencies, the Board provided the applicant with the opportunity to explain. Yet, the Board found that none of the responses made by the applicant was logical, persuasive or plausible, and the Board rejected each of them.

30.  After assessing all the written and oral evidence of the applicant including the findings made by the Director and the Board in relation to the 1^st non-refoulement claim, the Board concluded that the applicant had fundamentally falsified or exaggerated his claims that he would face serious harm in India. The Board found that the applicant was not harassed and threatened by or on behalf of Bhupinder at any time following the election and the applicant was not involved in a shooting incident where Bhupinder’s son was shot and injured. The Board found that there was not a real risk the applicant would face any forms of the proscribed harm, including the risk of arbitrary deprivation of life should he return to India.

31.  After due consideration of the law and all the evidence as presented by the applicant, the Board was not satisfied that the applicant had suffered past harm in India, whether from Bhupinder or any party associated with him. As that was the only basis of the applicant’s claim apart from his claim that there was a First Information Report against him, which the Board found did not exist, the Board concluded that the applicant was not entitled to non-refoulement protection on any of the applicable grounds under the USM.

32.  The Board did not consider availability of state protection and viability of internal relocation. However, as the applicant’s claims and the matters giving rise to his claims for non-refoulement protection were rejected in their entirety, it is therefore not necessary for the Board to consider the availability of state protection.

33.  As to internal relocation, it is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that he qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997). In other words, internal relocation only arises if the applicant has established a real risk of persecution in his home area (see Gardi v SSHD [2002] 1 WLR 2755).

34.  As it is the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm, it is not necessary for the Board to consider internal relocation.

35.  The finding of facts was solely within the ambit of the Board. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

36.  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.

37.  As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, 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

38.  For reasons aforesaid, the Leave Application is dismissed.

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