RASHPAL SINGH v. TORTURE CLAIMS APPEAL BOARD

HCAL 757/2021

[2026] HKCFI 1600

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 757 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;

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 36-year-old national of India who last arrived in Hong Kong on 13 March 2013 as a visitor with permission to remain as such up to 27 March 2013 when he did not depart and instead overstayed, and some 1 ½ years later on 29 September 2014 he surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if he returned to India he would be harmed or killed by his neighbor over some personal dispute in his home village. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Bhagta Bhai Ka, Tehsil Phool, District Bathinda, Punjab, India. After leaving school he worked as an electrician in his home district to make his living.

3.  One day in August 2012, while his family was holding a religious gathering in the house with relatives and neighbors, one of the neighbors Bhinder Singh and his friends became drunk and rowdy, and when the Applicant and his father asked them to leave, Bhinder Singh felt humiliated and lost his temper by attacking the Applicant by punching and kicking him until being restrained by others, and before he left with his friends he threatened to take revenge against the Applicant.

4.  Several weeks later one day while on his way home from work, the Applicant was confronted by Bhinder Singh who proceeded to punch and kick him, but the Applicant managed to make his escape without serious injuries.

5.  To avoid further attacks by Bhinder Singh, the Applicant was advised by his father to move to Moga to stay in a relative’s place, but later when he heard that Bhinder Singh had made some false charges against him that the police were looking for him for investigation, the Applicant felt it was not safe to remain in India, and so on 13 March 2013 he departed the country for Hong Kong when he subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 12 June 2018 and attended screening interview before the Immigration Department with legal representation.             

6.  By a Notice of Decision dated 17 July 2018. 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”).

7.  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 his neighbor Bhinder Singh upon his return to India as low due to the low intensity and frequency of past ill-treatment from his neighbor, that there is no evidence of any real intention of his neighbor to seriously harm or kill him over what was essentially some private and personal 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 1.2 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 anyone to locate him.

8.  On 26 July 2018, 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 8 February 2021 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 22 April 2021, his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision[1] the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from a neighbor over some personal dispute that caused him to leave his country to come to Hong Kong to seek protection, that he had fabricated his entire account of having been attacked by his neighbor and that the police were looking for him over some false charges which were all fabrications, that his credibility was further undermined by his failure to raise his claim upon first arriving in Hong Kong until more than one year later after having overstayed, and concluded that there are no substantial grounds for believing that he will face any real risk of harm or ill-treatment as claimed at the hands of a neighbor that his claim for non-refoulement protection failed on all applicable grounds. 

10.  On 25 May 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 to which he just attached a copy of the decision but without putting forth any proper ground for his intended challenge, nor was he able to do so at the hearing of 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.

11.  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.

12.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law 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 to challenge the finding of the Board.

13.  Furthermore, the fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s 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, a decision also agreed and confirmed by the Board, 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.  In the premises, and 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.  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, 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