SINGH MANDEEP v. TORTURE CLAIMS APPEAL BOARD

HCAL 79/2020

[2025] HKCFI 944

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 79 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 or counsel 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 8 January 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 3 January 2020 (“the Board's Decision”), which can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000079_2020_files/the_Board's_Decision.pdf

2.  The Board affirmed the decision of the Director of Immigration (“the Director”) dated 27 September 2017, which rejected the applicant’s non-refoulement claim.

Amendments

3.  Apart from naming the Board as a putative respondent, the applicant also named the Director as one of the putative respondents in Form 86, when the Director should be named as a putative interested party.  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

4.  The applicant’s case (as detailed in the Board’s Decision) can be briefly summarised as follows:-

(1)   The applicant is a male Indian national born on 6 July 1989.

(2)   He arrived in Hong Kong as a tourist on 3 October 2014 and was allowed to stay until 17 October 2014.  He overstayed and surrendered to the Immigration Department on 6 November 2014.

(3)   The applicant claimed that if refouled, he would be at risk of harm or even be killed by Amrit Kaur (“AK”) and her associates due to the land dispute between AK and his family.  AK is a woman who claimed to be a daughter of the applicant’s grandfather and to have a share in the land inherited by the applicant.

(4)   The dispute was raised before the village head but remained unresolved.  The matter was brought to the court in India.  AK won the first hearing and the applicant's father won on appeal.  AK further appealed and as at the date of the Board’s hearing, the appeal hearing was still pending.

(5)   The applicant came to Hong Kong initially for sightseeing.  During his stay, he received a phone call from his family in India claiming that his father and brother were beaten up by AK and her associates.  The applicant was advised not to return to India for his own safety.  Thus, the applicant overstayed and claimed for non-refoulement protection.

(6)   The applicant made his first non-refoulement claim to the Director on 27 January 2015.  The Director rejected his claim on 27 September 2017.  He filed a petition against that decision to the Board on 6 October 2017.

Grounds for judicial review

5.  The applicant is required to identify clearly the grounds for his intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015 dated 22.12.2016).

6.  However, the applicant did not advance any ground for his intended judicial review in Form 86 nor in his supporting affirmation filed on 13 January 2020.  He only stated in the affirmation that he would like to reject and aside [sic] the decision made by the Immigration Department as they disregarded the danger and threats he would face in his country should he be deported.

Discussion

7.  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).

8.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be a reasonably arguable claim which enjoyed realistic prospects of success.

9.  Since the applicant did not advance any specific ground for the intended judicial review, there is no way for this court to deal with his bare assertion that the Immigration Department had disregarded the danger and threats he would face in his country should he be deported.  However, for the sake of completeness, the court will still examine and scrutinize the Board’s decision for any error of law, procedural unfairness and irregularities.

10.  In assessing the applicant’s claim, the Board adopted the approach of a re-hearing, which is the correct approach.  The Board examined all the documentary evidence afresh and held an oral hearing on 19 November 2019.  The applicant was present and was given the chance to present his case and to produce any additional information or grounds for the appeal.  The Board questioned the applicant in detail to clarify the issues and incidents that gave rise to the non-refoulement claim.  After due assessment of the oral evidence and the written statements, the Board concluded that the applicant’s feared harm or ill-treatment was unlikely to materialise.  The applicant’s injury sustained in the previous assaults, even if real, did not attain a minimum level of severity.  If AK or her underlings had real intention to inflict serious harm or kill him, they could have easily done so in the past.  The Board rejected his claim that AK was behind the car accident for the lack of reliable evidence in support.

11.  The Board also re-assessed the applicant’s claim on all the applicable grounds under the Unified Screening Mechanism (“the USM”), namely:-

(a)  risk of torture under Part VIIC of the Immigration Ordinance;

(b)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance;

(c)  risk of violation of right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance; and

(d)  risk of persecution with reference to the non-refoulement principles under Article 33 of the 1951 Convention Relating to the Status of Refugees.

12.  After due consideration of the law and the evidence as presented by the applicant, the Board found that the applicant’s feared risk of ill-treatment and harm was low.  There was no real risk of life or risk of persecution.  The Board reached the conclusion that the applicant was not entitled to non-refoulement protection under any of the applicable grounds.

13.  In assessing the availability of state protection, the Board had referred to reliable and the then updated country of origin information for the applicant’s country from different sources.  The Board found that the alleged threat arose from the applicant’s family’s private dispute with AR over his family land, which was yet to be resolved judicially in India.  AK is a housewife with no political attachment.  The applicant should be able to obtain assistance from the police and authorities if he needed it.

14.  As to the viability of relocation, the Board correctly considered that internal relocation only arises if the applicant has established a real risk of persecution in his home area, which he has not.  Since the applicant failed to establish a real risk of proscribed harm in his home area, the Board did not find it necessary to consider the viability for the applicant’s internal relocation.

15.  Thus, the Board did consider the danger and threats the applicant would face in his country should he be deported, but reached the conclusion that the applicant was not entitled to non-refoulement protection.

16.  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 error of law, procedural unfairness or irrationality in the Board’s Decision.

17.  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.  Thus, the intended judicial review has no realistic prospects of success at all, and the Leave Application must be dismissed.

Conclusion

18.  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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