SUKHDEV SINGH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1271/2020

[2025] HKCFI 3908

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1271 of 2020

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court;

1.  Application to withdraw the application for leave to apply for Judicial Review (“Form 86”) be refused; and

2.  Application for leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.   This is the Applicant’s application by Form 86 filed on 23 June 2020 for leave to apply for judicial review (the “leave application”) of the decision (the “Decision”) of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) refusing his application for non-refoulement protection (the “Decision”).

Discussion and conclusion

2.  On 15 July 2025, the Applicant applied by letter to withdraw his leave application (the “withdrawal application”) asserting that it is now safe for him  to return to his home country and that he wishes to return.  To ensure that the withdrawal is valid and properly made, the Applicant was given directions by letter dated 11 August 2025 (the “directions letter”) to file an affirmation or a statement confirming:

(a)  that his withdrawal application is made out of his own free will;

(b)  that he will be safe to return to his home country; and

(c)  that he understands that if his withdrawal application is approved, the Decision of the Board dismissing his appeal against the decision of the Director of Immigration refusing his application for non-refoulement protection remains in force.

He was also advised that if no affirmation or statement shall have been filed as required, his withdrawal application will be refused and the leave application may be dismissed for want of prosecution unless he informs the Court of his intention to proceed with the leave application within 14 days of the directions letter.

3.  On 15 August 2025, the Applicant responded by filing an affirmation repeating his wish to return to his home country.  However, he did not confirm that he made the withdrawal application out of his own free will and understood the consequences if his withdrawal application is allowed as required in the directions letter.  He has not complied with the directions.  In the light of the Court’s directions, the Applicant must understand that if he does not comply with the directions, his withdrawal application may be refused and his leave application may be determined or dismissed for want of prosecution.  His withdrawal application also evinces a lack of intention to prosecute his leave application.  Having considered the nature and grounds of the application, the issues raised, the Decision, the papers, the applicable legal principles and all the circumstances, the Court considered that the leave application may be justly determined on paper without an oral hearing. 

4.  The Applicant arrived at Hong Kong on 6 June 2013 and overstayed since 10 June 2013.  On 16 August 2013, he was arrested by the police for overstaying.  Two days later, he lodged a non-refoulement claim.  His claim was refused by the Director.  His appeal against the decision of the Director was dismissed by the Decision of the Board.  He now seeks leave to apply for judicial review of that Decision.

5.  In gist, he claims, if he is returned to India, he would be at risk of being subjected to mistreatment and being killed by his girlfriend’s family members who disapprove of their relationship because he came from a lower caste.  He had been assaulted by them twice.  On the first occasion, he suffered bruises and swellings.  On the second occasion, he suffered abrasions and they threatened to kill him if they saw him again.  Out of fear, he fled India to Hong Kong.  While he is in Hong Kong, his father told him that his girlfriend’s father and brothers passed by their house and stared at his house from time to time.

6.  Having rigorously examined the Decision, the papers 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 four applicable grounds under the Unified Screening Mechanism (the “USM”); the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. 

7.  The Board assessed the Applicant’s claim on the basis of his case as he asserted.  It found his dispute with his girlfriend’s family was essentially a private family dispute in which no state actor was involved; that his experience did not amount to persecution for a reason protected by the 1951 Convention relating to the status of Refugees and its 1967 Protocol; that neither the Applicant nor his family members suffered any serious injury and that his past experiences do not amount to torture as defined by section 37U of the Immigration Ordinance.  It found even if the Applicant had been able to show that he faced a real or genuine risk of harm, the harm was localized in his home area and could be avoided by internal relocation.  It was on that basis that the Board found the Applicant’s feared ill-treatment is not well-founded.  Then, applying the law to the above finding of fact, the Board came to the conclusion that the Applicant was not entitled to non-refoulement protection under any of the four applicable grounds under the USM.  These are mixed finding of facts and of the law.  Insofar as they are finding of the law, they are absolutely correct.  Insofar as they are finding of fact, they are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. The Court could detect no error of law or procedural unfairness in the Decision.  The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge his burden of proving his fears and risks.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success.

8.  For the above reasons, the Applicant’s withdrawal application and leave application are refused.

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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