MANPREET SINGH v. TORTURE CLAIMS APPEAL BOARD

HCAL 3346/2019

[2025] HKCFI 5194

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3346 OF 2019

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.  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 11 November 2019, 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 18 October 2019 (“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/2019/HCAL003346_2019_files/the_Board's_Decision.pdf

2.  The Board found that the applicant’s claims for non-refoulement protection were not made out on the grounds of BOR 3 Risk[1], BOR 2 Risk[2] and Persecution Risk[3] under the Unified Screening Mechanism (“the USM”). Hence, the Board confirmed the decision of the Director of Immigration (“the Director”) dated 26 June 2018, which rejected the applicant’s non-refoulement claim.

3.  The applicant made a torture claim previously in 2012, which was rejected by the Director on 29 January 2013. The applicant did not appeal against the Director’s decision. Thus, the applicant’s claim for non-refoulement protection based on Torture Risk[4] had already been disposed of and it was not necessary for the Board to re-assess the applicant’s claim on this ground in the Board’s Decision.

The applicant’s case

4.  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.

5.  In sum, the applicant claimed for non-refoulement protection because if returned to India, he would face harm or being killed by Suraj and Rinko, who were gangsters involving in drugs and members of the Shiromani Akali Dal party (“SAD”), as he had refused to disclose to them the whereabouts of his brother, who had fled to Hong Kong. His brother was a member and the president of the youth wing of the Congress Party, which was SAD’s rival party. The police also arrested the applicant and threatened him to report his brother’s whereabouts.

Oral hearing

6.  The applicant requested for an oral hearing of the Leave Application. His case was heard on 12 August 2025.

7.  At the hearing, the applicant said that his brother was also in Hong Kong and the brother was prepared to go home to pay some money to settle his problem. However, the applicant could not go back because he still had a problem back home. The applicant said that he came to know about a year ago that there was a false criminal case made against him, but this happened after the Board’s Decision was made.

8.  When this court asked the applicant for his grounds for the intended judicial review, the applicant merely said that he had a feeling that the Board did not look into his case deeply or carefully.

Grounds for judicial review

9.  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).

10.  However, the applicant failed to advance any grounds for his intended judicial review in Form 86, nor in his supporting affirmation dated 11 November 2019. He merely stated in his supporting affirmation that the Leave Application was against the decision of the Board as well as the Director.

11.  As aforesaid, the applicant only said that he still had a problem back home but did not advance any valid ground at the oral hearing before this court.

Discussion

12.  First of all, only the Board’s Decision is reviewable by judicial process and not the Director’s Decision, as there are established statutory procedures of appeal from the Director to the Board and the applicant had invoked those procedures. The Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali [2018] HKCA 549). Thus, this court will only consider the Leave Application in respect of the Board’s Decision.

13.  Moreover, if the applicant intends to submit new evidence to this court for consideration of his non-refoulement claim, it is not permissible. As held in Trinh Thuy Huyen v Torture Claims Appeal Board [2024] HKCA 1090, the Board had no duty to make investigation into any matter without the applicant raising it and it should not be considered by this court at this stage.

14.  Further, as held in Nupur Mst v Director of Immigration [2018] HKCA 524, due to the difference in the role of the court in a judicial review and the role of the primary decision-makers, an applicant cannot rely on materials which have not been produced before the Board or the Director to contend that the latter erred in not taking those into account unless the decision-makers have a positive duty to elicit such materials on their own volition.

15.  Thus, the applicant cannot rely on the alleged matter concerning the false criminal charge against him which only came to his knowledge about a year ago and was not made known to the Board as a ground for his intended judicial review, and there is no reason for this court to consider it either.

16.  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, supra).

17.  Thus, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any valid ground being advanced by the applicant for the intended judicial review.

18.  In assessing the appeal by the applicant, the Board held an oral hearing on 9 October 2019. The applicant was present and was given the chance to present his case to the Board in person.

19.  As can be seen from the Board’s Decision, the Board gave very full and detailed reasoning for its conclusion that the applicant’s claims were not credible. The matters that raised the Board’s concerns about the credibility of the applicant’s claims were laid out in paragraphs 46-49 of the Board’s Decision. These concerns in respect of the central and significant aspects of the applicant’s claim led the Board to conclude that the applicant was not a witness of truth.

20.  Thus, the Board did not accept that the applicant was ever threatened or assaulted by Suraj, Rinko or their associates, including having a gun pointed at his head, and he was arrested by the police, beaten and tortured by them and threatened with having a false case brought against him. Further, the Board did not accept that after he left India, they harassed his parents to find out about his whereabouts. The Board did not accept that the applicant experienced any problems or harm in India from Suraj, Rinko, members of SAD or the police for any reason as alleged, or that he faced harm from these people on his return to India.

21.  In light of its findings above, the Board decided it was not necessary to consider the questions of whether the applicant could reasonably relocate to avoid the harm claimed or could alternatively avail himself of the protection of the state from the harm claimed.

22.  Although the Board did not make findings as to the viability of internal relocation for the applicant, 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 upon his return to India, it is not necessary for the Board to consider internal relocation.

24.  The finding of facts including the assessment of evidence 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