BALDEEP SINGH v. TORTURE CLAIMS APPEAL BOARD

HCAL 938/2024

[2026] HKCFI 1346

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 938 OF 2024

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 / the Applicant being absent in open court;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 41-year-old national of India who arrived in Hong Kong on 4 March 2023 as a visitor with permission to remain as such up to 18 March 2023 when he did not depart and instead overstayed, and was arrested by police on 18 August 2023. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim for protection on the basis that if he returned to India he would be harmed or killed by his creditor for failing to repay his debts.

2.  The Applicant was born and raised in Village Rattangarh, Amritsar, Punjab, India. After leaving school he worked as a construction worker to make his living, got married and raised a family with 3 children in his home village.

3.  In 2014 he purchased a piece of land in his home village to build a house for his family with the help of a loan borrowed from a local money-lender repayable by monthly instalments with interests which he managed to make by working in Saudi Arabia to work as a construction worker from 2014 to 2022.

4.  However, upon returning to India in 2022 he was unable to secure any jobs or income and therefore defaulted in his loan repayments, whereupon his creditor started to send men to threaten him, and after being beaten by those men on several occasions, and with a warning that they would kill him next time if he still failed to repay his loan, the Applicant became fearful for his life and departed India on 4 March 2023 for Hong Kong when he overstayed, and upon his subsequent arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 18 September 2023 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

5.  By a Notice of Decision dated 11 October 2023 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), 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”).

6.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim but found no evidence of any real intention of his creditor to seriously harm or kill him other than to press him to repay his debts, that in any event it was a private monetary dispute between just the 2 of them 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 1.4 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 Delhi or Mumbai where it would be difficult if not impossible for his creditor to locate him.

7.  The Applicant never lodged any appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and instead on 13 June 2024 filed a Form 86 for leave to apply for judicial review of the decision, and no ground for seeking relief was given in his Form or his supporting affirmation of the same date other than just a bare assertion that he is not satisfied with the decision but without any explanation as to why he did not first lodge any appeal to the Board as so advised by the Director at the conclusion of the decision (at [44]), nor did the Applicant request any oral hearing for his application.

8.  As it is clearly stipulated in Section 37ZR (b) of the Immigration Ordinance that a person aggrieved by a decision of the Director may appeal to the Board if the decision is made in respect of that person in rejecting his non-refoulement claim but which the Applicant has failed to do so. As such, I do not find any legal basis for the Applicant to now seek leave to apply for judicial review of the Director’s decision without first appealing to the Board as stipulated by the said Section 37ZR of the Immigration Ordinance.

9.  In the premises, and for this reason 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