PALWINDER SINGH alias PALWINDER-SINGH v. TORTURE CLAIMS APPEAL BOARD

HCAL 144/2021

[2025] HKCFI 171

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 144 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 31-year-old national of India who arrived in Hong Kong on 18 October 2015 as a visitor with permission to remain as such up to 1 November 2015 when he did not depart and instead overstayed, and on 4 November 2015 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 paternal uncle over a land dispute within the family. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Raja Tal, Amritsar, Punjab, India. After leaving school he assisted his father in farming on his father’s land inherited from his grandfather but which was coveted by his paternal uncle.

3.  In 2012 his father borrowed a loan from his uncle for his mother’s medical expenses by using the farmland as security for the loan and upon which his uncle was allowed to farm.

4.  However, after the loan had been paid off, his uncle refused to return possession of the farmland to his father, insisting that the land had already been sold to him, and when the Applicant and his father made a complaint to the police, his uncle fabricated some false charges against both of them, for which the Applicant fled from his home village to hide in various place, and although eventually his father was able to clear their names without any charge by the police, the Applicant was still fearful for his safety due to the threats made by his uncle against him, and therefore on 16 October 2015 he departed India for Hong Kong and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 5 November 2018 and attended screening interview before the Immigration Department with legal representation.

5.  By a Notice of Decision dated 30 November 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”).

6.  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 uncle over their land dispute upon his return to India as low due to the low intensity and frequency of past ill-treatment from his uncle, that there is no evidence of any real intention of his uncle to seriously harm or kill him other than to deter him and his father from pursuing their land dispute, that in any event it was a private land dispute within the family between the father and uncle of the Applicant 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 Mumbai where it would be difficult if not impossible for his uncle to locate him.

7.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 17 November 2020 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 3 February 2021 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision the Board found material inconsistencies discrepancies and vagueness in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from his paternal uncle over the land dispute between his father and his uncle that caused him to leave his country to come to Hong Kong to seek protection, that the Applicant was not considered as a witness of truth and that his claim of land dispute between his father and his uncle was not accepted as credible and concluded that the Applicant has failed to establish that there are substantial grounds for believing that he will face any real risk of harm or ill-treatment of any sort upon his return to India that his claim for non-refoulement protection failed on all applicable grounds.

9.  On 9 February 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 in his supporting affirmation of the same date in which he just repeated his claim of fear of harm from his uncle over the land dispute but without putting forth any proper ground for his intended challenge, 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.

10.  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.

11.  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 paragraphs 17 – 41 of 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.

12.  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.

13.  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.

14.  For all these reasons 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.

15.  As the Court has recently been informed by the Immigration Department that the Applicant has subsequently been removed from Hong Kong to his home country, I therefore direct that a request be made to the Director to use his best endeavor to forward a copy of this decision together with the sealed order to the Applicant in India.

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