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HCAL 2669/2019
[2025] HKCFI 2540
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2669 of 2019
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BETWEEN
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Bhagat Singh |
Applicant |
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and |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative |
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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 To:
1. Leave to amend the Form 86 be granted; and
2. Leave to apply for Judicial Review be refused.
Observations for the Applicant:
Introduction
1. This is the Applicant’s application by Form 86 filed on 12 September 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 29 August 2019 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) refusing his non-refoulement application. He named the Board as the putative respondent and putative interested party. The Board could not be both the putative respondent and interested party at the same time. Instead, the Director, whose decision was upheld by the Board should be the putative interested party. Hence, on its own motion, the Court granted leave to amend his Form 86 by substituting the Director for the Board as the putative interested party.
Background
2. The Applicant is an Indian national. He arrived in Hong Kong on 17 February 2013 and overstayed since 23 February 2013. He was arrested by the police on 27 August 2015. Then, he made a non-refoulement claim by way of written submissions dated 29 August 2015 and 22 February 2018. In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. His application was rejected by the Director. His appeal against the Director’s decision was dismissed by the Board’s Decision. He now applies for leave to apply for judicial review of that Decision.
The Applicant’s case
3. The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (the “NCF”) prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer. In gist, he claims that if returned to India, he will be harmed or killed by members of the Akali Dal Party (“SAD”) because he is a supporter of the Congress Party (“CP”).
4. The Applicant, now aged 34, was born in Village Ugrewal, Gurdaspur, Punjab, India. He is single. His parents and brother are living in India. He had received formal education for 12 years and had nine years’ experience working as a farmer.
5. He claimed he became a CP supporter in around 2009 or 2010. In around 2010, the SAD won the local village election and held a celebration. A fight broke out between SAD and CP members and supporters during the celebration. The Applicant was injured in the incident. He received medical treatment from Dera Baba Nanak Hospital but no hospitalisation was required. He claimed that after the incident, SAD members started harassing him.
6. In around July and November 2010, he was falsely prosecuted of air firing by the police of Batala and Kotli Surat Malli. In both occasions, he was arrested by the police and handcuffed. Two further false charges were laid by the police of Qila Lal Singh and Purana Shala against him between 2010 and 2013. In respect of these four false prosecutions, he was remanded in custody by the lower court of Batala. However, he was granted bail from the higher court of Gurdaspur.
7. One night in around August 2012, when the Applicant was riding his motorcycle, someone fired three to four shots at him but missed. He did not know how many attackers there were, as they were covered in masks in a vehicle. He learnt from his friends that the attackers were the same people who framed him in the false prosecutions. Worried about the situation, he fled to Mumbai and stayed there for four to five months and then left India for Hong Kong on 16 February 2013.
8. The Applicant claims that state protection is not available because the SAD being the ruling party had control of the police. He does not believe internal relocation feasible, as he believes the false prosecution will be re-opened and SAD members will continue to frame him up upon his return to India.
The finding of the Board
9. The Applicant testified before the Board. The Board considered it plausible and credible that his uncle was the village head and a member of the CP and his father was a supporter of the CP. While also accepting that he had provided some assistance to the CP, the Board nevertheless did not find he had developed any significant profile as a member or supporter of the CP as to attract the attention of the SAD at any relevant time. Thus, it did not find that the Applicant was identified or targeted at any time by anyone for mistreatment for reasons of actual or perceived political activism.
10. On the basis of country of origin information (“COI”), the Board accepted that there were low-level violence on occasions around election time in certain constituencies in India and there were celebrations after the SAD won the election. It accepted that a fight ensued during the celebration in which the Applicant was injured. The Board, however, did not consider the injury to be serious or life threatening.
11. As for the gunshot against him, the Board found this element of his claims lacked credibility because his description of the event as well as the circumstances in which he claimed it occurred was vague, inconsistent and confusing. He said that the shooting took place at night and while he was travelling at a speed of 50 or 60 km/h. But he claimed he could observe the circumstances of the shooting, in particular that the shooter and others were wearing masks in the vehicle at a distance. Likewise, the Board found that his evidence about the police investigation of this incident and that a friend told him who was responsible to be vague, confusing and lacking credibility. As such, the Board was not satisfied that the incident occurred as claimed and rejected his claim that he had been the target of a shooting for his political activity, political opinion, or any other reason.
12. In addition, the Board found that if the Applicant’s enemies had the intention to harm or kill him and were as powerful as he claimed, they would have ample opportunity to do so in the period after the shooting in August 2012 and before his departure for India in February 2013. The fact that the Applicant was not harmed during this six months’ period suggested that the risk of harm was either not real or to be localised in his home area, thus internal relocation appeared to be a viable option for the Applicant. In its ultimate analysis, in view of its finding of fact, the Board did not consider it necessary to explore the availability of state protection and internal relocation.
13. The Applicant said that he learnt from his family and friends that a gangster named Jaggu in Punjab, who was in prison, had uttered threatening language against him. Given its finding that no one in India had any intention to harm the Applicant, the Board was not satisfied that he would face any real risk of harm or death at the hands of Jaggu or anyone else in India, notwithstanding the Applicant’s suggestion that Jaggu had people on the outside and they would harm him.
14. Importantly, the Applicant did not make any claim for protection since his arrival in Hong Kong until some two and a half years later when he was arrested for overstaying. The Board found his failure to seek protection at the earliest reasonable opportunity since his arrival in Hong Kong seriously inconsistent with the conduct of a person who holds a genuine fear of serious harm or death in his home country if faced with the prospect of being returned. When asked for explanation for the delay, the Applicant told the Board that he had his friends and lived here and there and his cousins in Canada and the US would send him money for his survival. Without a satisfactory explanation, the Board regarded his delay as a further reason to conclude that his claims were not credible. It also led the Board to doubt his claim that he did not apply for protection earlier because he had been advised by Shun Wan Refugees Union that to make a claim he has to prove his identity but he could not as he had lost his passport. The Board also had serious doubt that the Union would have so advised him.
15. The Board did not accept the photograph he submitted depicting he was handcuffed as supporting his allegation about the four false charges, as it was not satisfied with its provenance and considered it could easily have been staged for the purpose of bolstering his claims. Giving him the benefit of the doubt, the Board nevertheless accepted that the charges had been laid against him. However, it found from the fact that he could hire a lawyer and obtained bail indicated that he was able to utilise the legal system in India in accordance with the law of that country. Even though he may be considered a deserter and prosecuted upon his return to India for having jumped bail, the Board was satisfied that he would be able to present his defence to such prosecutions that he would be ultimately subject to the determination of the relevant court in terms of the consequence of breaching his bail condition.
16. On the basis of the COI, the Board was satisfied that the Applicant would receive a fair trial and there are mechanisms in place whereby he could lodge a complaint and seek a remedy in the event he was not satisfied with the legal service or with the protection he might be given from the relevant authorities in India. The Board did not consider such prosecution would give rise to a real risk that he would suffer serious harm or death or torture or cruel, inhuman and degrading treatment or punishment.
17. On the evidence, the Board found that there could not possibly be any substantial grounds for finding that the Applicant would face a real risk of ill-treatment if refouled to India. Applying the law applicable to the non-refoulement protection to the above facts, the Board found that the Applicant had failed to establish the factual basis to support his claims for protection under any of the applicable grounds under the USM. Hence, it dismissed his appeal.
Legal principles applicable to judicial review
18. 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[5].
Grounds for judicial review
19. The Applicant did not advance any grounds of judicial review in his Form 86. In his supporting affirmation, he merely stated that “my life is in danger with [the Board’s Decision]”. In effect, he is seeking to challenge the Board’s finding of fact that he had failed to prove that he would face real harm or real risk of harm if returned to India. For reasons as explained in the preceding section, this is not permissible in an application for judicial review.
20. At the hearing, after the legal principles in the preceding section had been explained to him, he submitted that he had further evidence which he wished to produce. The evidence are: (1) some newspaper cutting in Punjabi in 2012, which he said supports his claim that he was being prosecuted for murder; (2) a website from which information about the charges of which he was prosecuted could be found; and (3) a photograph depicting him in handcuff. He said that Item (2) was obtained recently. He was not sure if Items (1) and (3) had been produced to the Board. The photograph in handcuff had been mentioned by the Board. In any event, these items would not improve his claim as the Board, giving him the benefit of the doubt, accepted the fact that the false charges had been laid against him.
21. In the absence of specific grounds of application or grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.
Overall scrutiny
22. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board analysed the evidence carefully, tested it against common sense and inherent probability. It gave generous allowance to the Applicant for benefit of the doubt. It accepted his evidence about the fight during the SAD celebration and four false charges he claimed, but rejected his evidence about the shooting. These are finding of fact solely for the Board. The Board gave full reasons for its finding. It was on the basis of these finding of fact that the Board made the further finding that the Applicant had failed to establish the factual basis to support his claim for non-refoulement protection under any of the applicable grounds under the USM. These are mixed findings of fact and of the law. Insofar as they are finding of the law, they are absolutely correct. Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law or procedural unfairness or that the Decision is irrational. The Court could detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge his burden of proving his fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.
Conclusion
23. For the above reasons, leave is granted to amend the Form 86, but the leave application as amended is refused.
Dated the 17th day of June 2025
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( Seline Sze )
for Registrar, High Court
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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:
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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 to the Applicant
on 17/06/2025
Bhagat Singh
Applicant’s ref. no: |
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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 17/06/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 14564/18/11/407/IN2883
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 4140/18 (Formerly RBCZ/10597/18)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap. 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap. 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)
[3] Risk of persecution by reference to the non-refoulement principle under Article 23 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol
[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383
[5] [2018] HKCA 524 at [14(1)]
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