HARJIT SINGH v. TORTURE CLAIMS APPEAL BOARD

HCAL 632/2021

[2025] HKCFI 5104

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 632 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 / 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 33-year-old national of India who arrived in Hong Kong on 30 October 2013 but when he was refused entry by the Immigration Department he then raised a torture claim later taken as a non-refoulement claim for protection on the basis that if he returned to India he would be harmed or killed by certain local supporters of the political party Shiromani Akali Dal (“SAD”) as he supported their rival Indian National Congress (“INC”). He was subsequently released on recognizance pending the determination of his claim but thereafter absconded on his recognizance and disappeared, and was arrested by police some 5 years later on 17 November 2020 when he re-opened his non-refoulement claim.

2.  The Applicant was born and raised in Village Chopra, District Gurdaspur, Punjab, India. After leaving school he worked as a farmer in his home district, and followed his family’s tradition to support INC regularly attended their local meetings and activities.

3.  One day in 2012, the Applicant was approached by a group of local SAD supporters to join their party, but when he refused, they then made threats against him before they left.

4.  About one week later, the Applicant was abducted by the same group of SAD supporters to some remote area where he was beaten and tortured until he finally agreed to seriously consider joining their party that he was released.

5.  Thereafter, the Applicant went into hiding to avoid those SAD supporters, but one day in September 2013 he was located by them and was beaten by them violently with wooden sticks, and before they left they warned him that next time they would kill him if he still failed to join SAD.    

6.  As a result, the Applicant became fearful for his life and fled to Khojkipur to take shelter in a relative’s place, and on 30 October 2013 he departed India for Hong Kong, and when he was refused entry he then raised his non-refoulement claim for protection but went absconded thereafter on his recognizance until 17 November 2020 when he was arrested by police and re-opened his claim, for which he completed a Non-refoulement Claim Form (“NCF”) on 25 January 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

7.  By a Notice of Decision dated 8 February 2021, 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”).

8.  In his decision, the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from those local SAD supporters upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill him or any political reason for them to specifically target the Applicant, that in any event in the absence of 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 1.3 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 Mumbai or Delhi where it would be difficult if not impossible for anyone to locate him.

9.  On 17 February 2021, 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 9 April 2021 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 14 April 2021, his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  In its decision[1], the Board found no reliable evidence of any real intention of those local SAD supporters to seriously harm or kill the Applicant or any political reason for them to specifically target him for harm other than to press him into joining their party, and that in any event in the absence of 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 that his claim for non-refoulement protection failed on all applicable grounds.    

11.  On 20 April 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 made bare assertions that the decision was unlawful and irrational and contrary to the principle of justice but without providing any details or particulars as to how it was so, nor did he request any oral hearing for 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.

12.  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.

13.  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.                

14.  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.

15.  Moreover, the Applicant recently on 27 September 2025 in writing requested to withdraw his application as his issue in his home country has been resolved that he now wants to return to India.

16.  In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation of no more issue for him to return to his home country, I accordingly dismiss his leave 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