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

HCAL 2275/2020

[2025] HKCFI 682

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2275 of 2020

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;

1.  The Form 86 is amended on the court’s own motion.

2.  The Leave Application be dismissed.

Observations for the Applicant:

Introduction

1.  By prescribed Form 86 filed on 18 November 2020, the applicant applied for leave to apply for judicial review (“Leave Application”) of the decision of the Torture Claims Appeal Board (“the Board”) dated 11 November 2020 (“Board’s Decision”).  The Board had dismissed the applicant’s appeal against the decision (“Director’s Decision”) dated 11 May 2018 of the Director of Immigration (“Director”) who had refused the applicant’s claim for non-refoulement protection.

2.  In Form 86, the applicant named the Director as the proposed respondent as well as the interested party.  As the Board should have been the proper proposed respondent and the Director the proper proposed interested party, Form 86 will be amended accordingly on the court’s own motion.

Background

3.  The background as taken from the Decisions of the Director as well as the Board can be briefly stated as follows.

4.  The applicant is a national of India.  He arrived in Hong Kong on 12 December 2014 as a visitor.  After his visa expired on 26 December 2014, he overstayed.  On 8 January 2015, he surrendered to the Immigration Department. On 10 March 2015, he lodged a non-refoulement claim, covering all applicable grounds - risk of torture^[1], BOR 2 risk^[2], BOR 3 risk^[3] and persecution risk^[4] under the USM.^[5]  The claim was based on his fear that he would be harmed or even killed by his cousin over a dispute as to the half ownership of the land.

5.  The Director decided against the applicant’s claim on all applicable grounds.  Hence, the appeal to the Board.

6.  On 17 July 2020, the applicant attended a hearing with an interpreter before the Board.  Whilst the Board believed the existence of the dispute over the ownership of the land between the applicant and the cousin, the Board found that the applicant could avoid any risks of harm by modifying his conduct such as abandoning his claimed entitlement to the land.  In any event, the Board found that private land dispute is not universally protected by international human rights law.  It further found that the option of internal relocation was also reasonably available to him.  The Board concluded that the applicant failed to establish his claim on all the aforesaid grounds, and affirmed the Director’s Decision.

Legal principles applicable to judicial review

7.  As the Courts have repeatedly stated, determination of the merits of a non-refoulement claim is essentially a matter for the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them.  A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error.  A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see 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.

Discussion and conclusion

8.  The applicant’s Form 86 did not contain any grounds for seeking relief. Apart from stating that he still felt risky in his country, the applicant did not put forward any grounds to support the Leave Application.

9.  Having rigorously examined the Board’s Decision with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles relating to the four grounds mentioned above; correctly identified the issues, and observed a very high standard of fairness.  I am satisfied that there were no errors of law or procedural unfairness in the Board’s Decision.  The Board had taken all the relevant circumstances of the applicant’s claim into account in its assessment.  I find that it was perfectly open to the Board to come to its conclusion that the applicant had failed to discharge the burden of proving the asserted fears and risks.

10.  For these reasons, I am not satisfied that the Leave Application is reasonably arguable with realistic prospects of success such that would enable this court to grant leave: see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.  The Leave Application is accordingly dismissed.

The removal of the applicant

11.  The court was recently notified by the Director that the applicant had been removed from Hong Kong.  We will send a copy of this judgment and the sealed order to the Director and request that he use his best endeavours to forward them to the applicant.

Orders

12.  The Form 86 is amended on the court’s own motion.

13.  The Leave Application be 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