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

HCAL 2958/2019

[2025] HKCFI 1265

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2958 OF 2019

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J U D G M E N T

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 19 November 2018 of the Torture Claims Appeal Board (“the Board’s Decision”). His application is late. His application shall not be later than 3 months from the date of the Board’s Decision[1], which expires on 19 February 2019. His application was filed on 9 October 2019, which is late for more than 7 months. This issue will be dealt with below.

2.  The applicant asked for a hearing. He appeared before the Court on 12 March 2025.

The applicant

3.  The applicant, aged 30, is a national of India. On 12 March 2015, he arrived in Hong Kong by the strength of his Indian passport and overstayed since 27 March 2025. In due course, the applicant lodged his non-refoulement claim by written signification.

4.  The applicant’s claim was based on his fear of being harmed or killed by his uncle due to a land dispute.

5.  According to the applicant, there was a land dispute where his father divided the family land into 2 equal parts; one for his family, the other for his brother’s family. His uncle disagreed and suggested the land should be divided into 3 equal parts because he had 2 sons and his father only had the applicant. However, the land was divided into 2 equal parts. The relationship of the 2 families thus turned sour. There were four incidents that occurred between the 2012 and 2014 where the applicant had been threatened and/or assaulted. He was attacked by his uncle and his uncle’s sons with wooden sticks causing bruises over his body; his brother hit his motorcycle with a vehicle. He had sustained injuries as his right leg was fractured and his right knee bone dismantled. He had to be admitted to hospital for medical treatments. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 13 March 2018 by the Director (the “Director’s Decision”).

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, the Director dismissed his claim. In summary, the Director found that the threats made against the applicant were only to vent their anger without a real intention of killing the applicant; that the risk of harm from the uncle and his family is low; that the applicant’s delay in seeking protection is inconsistent with that of a person in genuine fear [11-14]; that state protection is available if he returns to India [15]; and that internal relocation alternatives are available and reasonable [16].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board. The Board decided against an oral hearing for his appeal, noting that when his application was dealt with by the Director, the applicant was legally represented [20].

9.  Having considered the evidence, the Board found that the applicant had never sustained any serious harm or suffering [39]; BOR 2 was irrelevant to the applicant’s case [38]; that there was no substantial ground under BOR 3 [35], and that the applicant’s injuries were not within the scope of serious harm [28-33]. In any event, the Board was satisfied that it would not be unduly harsh for the applicant to internally relocate [44-45]. In conclusion, the Board held that the applicant’s claim failed under all applicable risks. It therefore dismissed his appeal and confirmed the Director’s Decision.

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

10.  The applicant issued Form 86 on 9 October 2019 to apply for leave for judicial review of the Board’s Decision.

11.  The applicant has attached the Grounds for Relief to Form 86. The grounds can be summarized insofar as the Board is concerned, the adjudicator reached the wrong decision without paying attention to BOR 2 risk; the Board had placed too much weight on the country of origin information without considering his personal background; the Board did not accept his evidence and demanded him to answer questions he was not in a position to respond and its decisions are irrational.

DISCUSSION

12.  As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. I shall consider the merits of the applicant’s case.

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 did not think that the Board’s Decision was wrong. Nevertheless, he asked this Court to review it.

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.  The grounds under 11 are his bare assertions without any evidence in support. They are inconsistent with his submissions before the Court. They are not valid to challenge the Board’s Decision.

16.  In the circumstances, 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 extend time for the applicant to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.