KANWALDEESH SINGH v. TORTURE CLAIMS APPEAL BOARD

HCAL 349/2020

[2025] HKCFI 3599

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 349 OF 2020

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 in open court;

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

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 9 March 2020, 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 25 February 2020 (“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/HCAL000349_2020_files/the_Board's_Decision.pdf

2.  The Board found that the applicant’s application for non-refoulement protection was not made out on all the applicable grounds (other than Torture Risk[1]) under the Unified Screening Mechanism (“the USM”). Hence, the Board refused the applicant’s appeal/petition and confirmed the decision of the Director of Immigration (“the Director”) dated 31 July 2018 (“the Director’s 2^nd Decision”), which refused the applicant’s application for non-refoulement protection based on BOR 2 Risk[2], BOR 3 Risk[3] and Persecution Risk[4].

3.  The applicant had previously made a torture claim under Part VIIC of the Immigration Ordinance, Cap 115 on 26 March 2007, and the Director rejected his torture claim on 3 September 2013 (“the Director’s 1^st Decision”).

4.  Thus, the Director had already determined the applicant’s Torture Risk in the Director’s 1^st Decision and there was no need for the Director to deal with it again in the Director’s 2^nd Decision. Likewise, there was no need for the Board to deal with Torture Risk in the Board’s Decision.

Amendments

5.  In Form 86, the applicant spelt the Board’s name wrong and named the Board as both the putative respondent and the putative interested party, when the putative interested party should be the Director.

6.  Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board” and the name of the putative interested party is amended to “Director of Immigration”.

The applicant’s case

7.  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.

8.  In sum, the applicant claimed for non-refoulement protection because if refouled to India, his former business partner and his associates would harm or kill him, as they believed that the applicant had informed the police that his former business partner had illegal weapons.

Oral hearing

9.  The applicant requested for an oral hearing of the Leave Application and his case was heard on 24 July 2025.

10.  However, the applicant did not advance any ground for the intended judicial review during the oral hearing and had nothing to say save that he could not go back to his own country because it was not safe for him.

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 the intended judicial review in Form 86, nor in his supporting affirmation dated 9 March 2020. The applicant merely stated in the affirmation that he was not satisfied with the Board’s Decision and that he could not go back to his home country as his life would not be safe.

13.  As aforesaid, he did not advance any ground for the intended judicial review at the oral hearing either.

Discussion

14.  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).

15.  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.

16.  In assessing the appeal by the applicant, the Board arranged an oral hearing on 4 November 2019 and the applicant was present. Thus, the applicant did have the opportunity to present his case to the Board in person.

17.  The Board found significant inconsistencies in the applicant’s account given to the Director during the screening process and to the Board at the Board’s hearing. The inconsistencies included:

(1)  who his former business partner was;

(2)  whether he warned his former business partner that he would report his illegal activities to the police;

(3)  whether he was beaten before or after his former business partner’s arrest;

(4)  whether there were employees working for their shop;

(5)  whether he was located and shot at when he was staying with a relative in Faridkhot before he left India;

(6)  whether he returned to his home once or twice a month during his stay with the relative or just 2 days before his departure from India;

(7)  which of his friends were killed by his former business partner; and

(8)  whether his former business partner was involved in the selling of drugs.

18.  The Board found the above discrepancies significant, the applicant’s explanations inadequate and his accounts could not be reconciled. Thus, the Board did not find the applicant to be a credible witness. The Board found that the applicant had fabricated and concocted his evidence to advance a claim for non-refoulement protection.

19.  Having considered all the evidence, the Board concluded that the applicant was not at risk of any of the proscribed forms of harm if refouled to India.

20.  Thus, the applicant’s alleged danger upon return to his home country had been duly considered but rejected by the Board.

21.  Although the Board did not consider state protection and internal relocation, it was unnecessary to do so as the applicant’s non-refoulement claim and the matters giving rise to his claim were rejected in their entirety.

22.  As to internal relocation, it is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that he qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997). In other words, internal relocation only arises if the applicant has established a real risk of persecution in his home area (see Gardi v SSHD [2002] 1 WLR 2755).

23.  As it is the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm, it is not necessary for the Board to consider internal relocation.

24.  The assessment of evidence, country of origin information and risk of harm was primarily within the realm of the Board. The Board was entitled to come to its own conclusion. If the applicant is seeking to challenge the Board’s finding of facts, it is not permissible in an application for judicial review. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

25.  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.

26.  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

27.  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

Form CALL-1