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HCAL 3297/2019
[2025] HKCFI 3353
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3297 of 2019
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Sukhdev Singh |
Applicant |
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and
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
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Putative Respondent |
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and
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Director of Immigration |
Putative 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 K.W. Lung:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
THE APPLICATION
1. The applicant applies for leave to apply for judicial review of the Decision dated 25 October 2019 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing the appeal against the Director’s Decision as described below.
2. The applicant asked for a hearing. He appeared before the Court on 7 July 2025.
3. Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.
The applicant
4. The applicant is a national of India. According to records, the applicant entered Hong Kong on strength of his Indian passport on 13 and 14 October 2015 and overstayed since 29 October 2015. The applicant surrendered to the Immigration Department on 3 November 2015 and in due course, filed his non-refoulement claim.
5. The applicant’s claim was based on his fear of being harmed or killed by his enemies due to a land dispute. He is also afraid because his enemies belonged to the highest caste in India and were strongly against the relationship between the applicant and his girlfriend.
6. According to the applicant, he was in a relationship with his girlfriend whose family belongs to Jatt caste, one of the highest caste in India, while the applicant belonged to the Schedule Caste, the lowest caste in India. Therefore, he was in fear of being harmed by his girlfriend’s father and brother as they strongly opposed to the relationship. Furthermore, there was a land dispute with the girlfriend’s father and his father where multiple incidents occurred including an assault sometime in the end of 2014. Details of his claim are set out at paragraph 7 of the Notice of Decision dated 27 December 2018 by the Director (the “Director’s Decision”).
The Director’s Decision
7. 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”).
8. By way of the Director’s Decision, the Director dismissed the applicant’s claim because it was unsubstantiated. Besides, state protection is available and internal relocation is viable, which will mitigate or neutralize the applicable risks.
The Board’s Decision
9. The applicant appealed the Director’s Decision to the Board. On 14 August 2019, the Board conducted an oral hearing for his appeal. The applicant had given oral evidence.
10. Having considered the evidence, the Board did not accept that the applicant faced a real chance of harm of any type in India in the reasonably foreseeable future, and did not accept that the applicant is or has ever been an actual or perceived owner of land, nor was threatened or in an inter-cate relationship [56-57]. It therefore dismissed his appeal and confirmed the Director’s Decision. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003297_2019_files/the_Board's_Decision.pdf.
Application for leave to apply for judicial review of the Board’s Decision
11. The applicant has filed Form 86 dated 5 November 2019 for leave to apply for judicial review of the Board’s Decision. The applicant included grounds which are summarized as follows: the Director’s and Board’s Decisions were not reasonable and not fair; there was a failure to consider state acquiescence; excessive reliance on country of origin information; and the Director’s failure to attain a high standard of fairness.
12. In his affirmation in support of his application, the applicant did not raise any specific ground to challenge the Board’s Decision.
DISCUSSION
13. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).
14. 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 he does not know if the Board’s Decision is wrong.
15. 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.”
16. Those grounds under paragraph 11 are his bare assertions or personal views without any evidence in support. The applicant has raised no valid ground to challenge the Board’s Decision.
17. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.
DISPOSITION
18. I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.
Dated the 2nd day of September 2025
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(M.O. WONG)(Ms)
for Registrar, High Court |
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 2/9/2025
Sukhdev Singh
Applicant’s ref. no:
Nil |
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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 2/9/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 15220/19/1/93/IN3007
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 4459/18 (Formerly RBCZ 11866/16)(T6I116)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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