SAVINDER SINGH v. TORTURE CLAIMS APPEAL BOARD

HCAL 1211/2021

[2025] HKCFI 6166

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1211 OF 2021

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 or counsel in open court;

1.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”.

2.  The applicant’s application to withdraw the application for leave to apply for judicial review be refused.

3.  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 30 August 2021, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 6 August 2021 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL001211_2021_files/the_Board's_Decision.pdf

2.  The Board found that the applicant had not made out a case for non-refoulement protection in respect of any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board rejected his appeal/petition and confirmed the decision of the Director of Immigration (“the Director”) dated 18 May 2017, which rejected his non-refoulement claim.

Amendment

3.  In Form 86, the applicant named the Board / Non-refoulment Claim Office as the putative respondent, when only the Board should be so named.

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

5.  Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board”.

The applicant’s case

6.  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.

7.  In sum, the applicant claimed for non-refoulement protection because if refouled to India, Hindu nationalists or fundamentalist religious entities, organisations or individuals and/or their associates would target him for religious persecution due to his “minority status” and that he would then be at risk of physical violence and forced re-conversion.

Withdrawal of the Leave Application

8.  Before the Leave Application was dealt with, the applicant applied to withdraw the Leave Application by way of his letter dated 30 September 2025 to the High Court Registry. In this letter, the applicant stated that he wished to voluntarily return to India and he no longer wished to pursue his non-refoulement protection claim in Hong Kong. However, the applicant did not state the reason why he wanted to return to India.

9.  Nevertheless, the Director informed this court by way of a letter dated 9 October 2025 that the applicant had written a letter dated 30 September 2025 (different from the aforesaid letter) stating his intention to withdraw his case and to return to his home country. In the applicant’s said letter, the reason given for his returning to India was that he chose to return to take care of his health and to reunite with his family, despite the apparent danger.

10.  In other words, the applicant wanted to return to his own country not because his problems had been resolved nor it was safe for him to do so.

11.  There is no evidence to show that the applicant made the withdrawal application other than out of his own volition. With this withdrawal application, it is clear that the applicant no longer wishes to proceed with the Leave Application or any oral hearing of the Leave Application even though he had previously requested one.

12.  However, the Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 that:-

“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

13.  Thus, it is not right to leave the action at large by granting leave to withdraw to the applicant. This court will proceed to deal with the merits of the Leave Application.

Grounds for judicial review

14.  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).

15.  In Form 86, the applicant asserted that the Board’s Decision was substantially unfair. He was preparing the Leave Application without legal representation and he reserved the right to amend his grounds in due course.

16.  In his supporting affidavit dated 30 August 2021, the applicant merely stated that the Board’s Decision was not made correctly and he would submit additional grounds to support his claim.

Discussion

17.  Despite what were stated in his Form 86 and supporting affidavit, the applicant had not amended his Form 86 or submitted any additional grounds to support his claim.

18.  The Court of Appeal has repeatedly held that general assertions without particulars cannot be effective grounds to support a judicial review (see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; and Re Kharsu Numan [2019] HKCA 626). Further, as held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”.

19.  Thus, the general assertions that the Board’s Decision was substantially unfair or not made correctly cannot help the applicant at all.

20.  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).

21.  Thus, despite the fact that the applicant did not advance any valid ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.

22.  The applicant was afforded two oral hearings before the Board on 13 March 2019 and 2 April 2019 respectively and the applicant was legally represented. Thus, the applicant did have the opportunity to present his case to the Board through his legal representative.

23.  As can be seen from the Board’s Decision, the Board had indeed assessed and analyzed the applicant’s case in details. After due consideration of the evidence, the Board found the applicant’s evidence concerning the core of his claims, namely (1) the applicant’s pastorship; (2) the telephone threat which he allegedly received in Hong Kong; and (3) Shiv Senna targeted him personally for ill-treatment because of his religious practice, to be implausible.

24.  When assessed cumulatively, the Board found that these implausibilities in the applicant’s evidence further undermined his overall credibility.

25.  Thus, the Board was not persuaded, even to the low standard required, that all of the material events and the conditions the applicant had described in India, upon which his claim was based, were factually accurate. The Board did not accept that (1) the applicant was ordained as a Christian pastor/minister in India; (2) the applicant was a victim of a home invasion before he left India for Hong Kong; (3) the applicant had ever been subjected to ill-treatment in India or in Hong Kong due to his religious beliefs and/or any of his activities as a Christian; and (4) the applicant was ever a personal target of Shiv Senna and/or any other religious extremist group(s) in India.

26.  The Board had also considered reliable country of origin formation (“COI”) and found nothing in the available information to indicate that the applicant would be refused assistance in the future from a variety of sources in his home area if he requested it. The Board was satisfied that reasonable state protection was available to the applicant in India.

27.  Moreover, even taking the applicant’s claims at their highest, the Board found that given the years of the applicant’s absence in India, it was unlikely that his enemies would have any continuing interest in finding him. Even if they did, the Board considered it even more unlikely that they would have the ability, motivation and resources to scour the vastness of India and succeed in finding and harming him, particularly if he was to relocate to one of a number of areas in India where Christians formed the majority or a significant proportion of the population.

28.  Given the applicant’s age, education and work experience including experience in farming, the available evidence suggested that he would be unlikely to encounter serious difficulty finding acceptable work in India. Thus, the Board found internal relocation a viable option for the applicant if he was unable or unwilling to return to his home area upon refoulement.

29.  The Board also considered each of the applicable grounds under the USM separately and found that the applicant failed to establish any of them.

30.  The assessment of evidence, COI and risk of harm was primarily within the realm 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 decision.

31.  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.

32.  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 intended judicial review has no realistic prospects of success at all, and hence the Leave Application must be dismissed.

Conclusion

33.  For reasons aforesaid, the application to withdraw the Leave Application is refused and 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