SINGH JASWANT v. TORTURE CLAIMS APPEAL BOARD

HCAL 2130/2020

[2026] HKCFI 1586

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2130 OF 2020

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

1.   On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, “Director of Immigration” be added as the putative interested party, and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 16 October 2020”.

2.   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 23 October 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision which was described as follows:

“Descision of Immigration officer as conlained in the in the notice of 16 October 2020”

2.  The Torture Claims Appeal Board (“the Board”) made a decision dated 16 October 2020 (“the Board’s Decision”) regarding the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 24 May 2018 (“the Director’s Decision”).  It is clear that the date of decision in Form 86 was the date of the Board’s Decision.  Thus, the subject matter of the Leave Application should be 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/2020/HCAL002130_2020_files/the_Board's_Decision.pdf

3.  The Board found that the applicant had not substantiated a case for non-refoulement protection on any of the applicable grounds under the Unified Screening Mechanism (“the USM”).  Hence, the Board dismissed the applicant’s appeal/petition and confirmed the Director’s Decision, which rejected the applicant’s non-refoulement claim.

Amendments

4.  The applicant named both the Board and the Director as the putative respondents and did not name any putative interested party in Form 86.

5.  In fact, only the Board should be named as the putative respondent and the Director should be named as the putative interested party.

6.  As aforementioned, the decision in respect of which relief is sought should be the Board’s Decision.

7.  Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”, to add “Director of Immigration” as the putative interested party, and to amend the decision in respect of which relief is sought to “Torture Claims Appeal Board’s decision dated 16 October 2020”.

The applicant’s case

8.  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.

9.  In sum, the applicant claimed for non-refoulement protection because if refouled to India, he would be harmed or killed by Chand Singh (“C”) and Nachhtar Singh (“N”), two brothers who wanted to regain the title to some land, which was originally under their ancestors’ name, before the independence of India.  After the independence, the possession of the land was given to the applicant’s ancestors.  C and N were the sons of Gurdial Singh, who was a cousin of the applicant’s grandfather.

Disposal on paper

10.  The applicant did not request for an oral hearing of the Leave Application.  This court is also satisfied that the Leave Application can be disposed of based on the written materials before this court.  Thus, the Leave Application is dealt with on paper.

Grounds for judicial review

11.  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).

12.  The applicant did not advance any ground for his intended judicial review in Form 86, nor in his supporting affirmation dated 23 October 2020.  The applicant only stated in the affirmation that his life was in danger in India, he did not want to go back and he had already mentioned his problems.

Discussion

13.  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).

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

15.  In assessing the appeal/petition by the applicant, the Board held an oral hearing on 28 September 2020.  The applicant was present and was given the chance to present his case to the Board in person.  

16.  As can be seen from the Board’s Decision, the Board gave very full and detailed reasoning in finding that the applicant’s claim for non-refoulement protection in Hong Kong failed on all the applicable grounds under the USM.

17.  Although the Board did not find the applicant’s evidence to be credible given the discrepancies in his oral and documentary evidence, the Board did consider the applicant’s case in its entirety and examined extensive country of origin information (“COI”) relevant to his contentions.

18.  The Board found that the injuries the applicant allegedly sustained from the two attacks did not attain the minimum level of severity to fall within the definition of “torture” under section 37U of the Immigration Ordinance (“s.37U”). The acts or conduct of the assailants and attackers were for the purpose of scaring the applicant and his family off the land and to force the applicant’s father to give up the title to the land.  The pain or suffering inflicted on the applicant was thus not for any listed purposes under s.37U.  The Board also found that the applicant’s fear of ill-treatment was not on account of his race, religion, nationality, or membership of a particular social group.

19.  Although the applicant alleged that C and N were members of the Akali Dal Party and powerful, the Board found that there were no public officials involved. The applicant did not pursue the matter further when he and his family were not given assistance by the police.  The authorities were not aware of his plight and were not in a position to offer any assistance in this aspect.  The applicant’s reluctance to seek protection did not necessarily mean that effective state protection was not available.  The Board found from COI that despite shortcomings and corruption in the Indian police, reasonable state protection would have been available should the applicant actively seek it.

20.  Moreover, the Board found no evidence that the political parties that C and N associated with had shown any interest in the applicant.  C and N had not been able to find the applicant once he was outside the vicinity of his home village.  The Board found that internal relocation to large cities such as Mumbai and Kolkata was a viable option to the applicant, who had 10 years of education and had been the owner of an electrical works shop for about 7 years.

21.  Thus, the Board concluded that the applicant had not substantiated a case for non-refoulement protection on any of the applicable grounds under the USM.

22.  The finding of facts including the assessment of evidence, COI and risk of harm was solely within the ambit 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 conclusion.

23.  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. 

24.  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 applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

25.  For reasons aforesaid, 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

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