AMANDEEP v. TORTURE CLAIMS APPEAL BOARD

HCAL 828/2021

[2026] HKCFI 1154

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 828 OF 2021

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

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

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 37-year-old national of India who last arrived in Hong Kong on 31 December 2011 as a visitor with permission to remain as such up to 14 January 2012 when he did not depart and instead overstayed, and was arrested by police more than 9 months later on 30 October 2012. After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to India he would be harmed or killed by his uncle over some land dispute with his father in his home village, and after his torture claim was rejected, he then sough non-refoulement protection on the same basis. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Kotli Ryan, District Hoshiarpur, Punjab, India where his father and uncle inherited their share of his grandfather’s farmland in the village, and that his father rented his land to his uncle for farming for rental income.

3.  In 2010 his father and uncle had some dispute over the use of the land that his father took back his land from his uncle, and started farming on the land together with the Applicant.

4.  His uncle however was angry about it and made false charges to the police who then arrested both the Applicant and his father but later released them without charge after completing their investigation, whereupon the Applicant and his father returned to farm on his father’s farmland.

5.  One day in the summer of 2010 while they were working on the farmland, his uncle and followers arrived to quarrel with his father during which they scuffled and pushed each other but were soon intervened by their neighbours that his uncle then left with his followers.

6.  However, the situation later escalated in October 2010 when his uncle and followers arrived to again demand that the Applicant and his father leave the land, and when they refused, his uncle and followers than attacked them by punching and kicking them that they suffered cuts and bruises all over their body that subsequently required medical treatments in a hospital.

7.  To avoid further confrontation with his uncle, his father in the following year in May 2011 left for Dubai to work as a driver while the Applicant remained in his home village, but one day in October 2011 he was confronted by his uncle who suggested that he should also follow his father to leave the village, and pointed a pistol at the Applicant threatening to kill him if he failed to heed his warning.

8.  As a result the Applicant became fearful for his life and so in December 2011 he departed India for Hong Kong and subsequently overstayed, and upon his arrest by the police some 9 months later he raised his torture claim, and after it was rejected he then sought non-refoulement protection, for which he completed a Supplementary Claim Form (“SCF”) on 7 January 2019 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

9.  By a Notice of Decision dated 30 January 2019 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

10.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real risk of him being harmed or killed by his uncle upon his return to India due to the low intensity and frequency of past ill-treatment from his uncle, that there is no evidence of any real intention of his uncle to seriously harm or kill him other than angry words and empty threats, that in any event it was a private land dispute between his uncle and his father only without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in India with a large population of 1.2 billion people spread across a vast territory of more than 3.2 million square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from his home district in large cities such as New Delhi or Mumbai where it would be difficult if not impossible for his uncle to locate him.

11.  On 4 February 2019 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 27 April 2020 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 25 March 2021 his appeal was dismissed by the Board which also confirmed the Director’s decision.

12.  In its decision[1] the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from his uncle that caused him to leave his country to come to Hong Kong to seek protection, that his credibility was further undermined by his failure to raise his claim upon first arriving in Hong Kong until more than 9 months alter and only after he was arrested by police, that even if his account of events prior to his departure of India were true that there was no reliable evidence of any real intention of his uncle to seriously harm or kill him, and that in any event it was a private land dispute between his uncle and his father only without any official involvement that state or police protection would be available to the Applicant upon his return to India as well as reasonable internal relocation alternatives for him to move safely to other parts of the country away from his home district without any risk of being located by his uncle that his claim for non-refoulement protection failed on all applicable grounds.

13.  On 4 June 2021 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or his supporting affirmation of the same date in which he just asserted that the decision disregarded his dangerous situation but without any relevant or necessary details or particulars or elaborations as to how it did so, nor was he able to do so at the hearing of his application. As such, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge of the Board’s decision.

14.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

15.  In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in his claim even if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

16.  In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

17.  For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss his application.

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