PRABHDEEP SINGH v. TORTURE CLAIMS APPEAL BOARD

HCAL 1948/2019

[2025] HKCFI 1741

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1948 OF 2019

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 26-year-old national of India who arrived in Hong Kong on 29 March 2016 but when he was refused entry by the Immigration Department, he raised a non-refoulement claim for protection on the basis that if he returned to India he would be harmed or killed by certain local supporters of the political party Shiromani Akali Dai (“SAD”) as he supported their rival India National Congress Party (“INC”). He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Abdal, Tehsil Amritsar, District Amritsar, Punjab, India. After leaving school he continued to reside with his parents in his home village, and in December 2013 he started to support INC regularly attended their local meetings and activities, and generally assisted in their election campaigns gathering people to vote without holding any official post in the party.

3.  In late 2015 the Applicant started to receive threats from certain local SAD supporters when one day in December 2015 he was confronted by them who demanded him to stop supporting INC or else there would be serious consequences.

4.  Then shortly thereafter in January 2016 when he was assisting in INC’s election campaign giving a speech to about 150 local villagers, the Applicant and his fellow supporters were attacked by a group of SAD supporters with wooden sticks and other weapons that the Applicant suffered cuts and bruises all over his body, and had to be taken to the local hospital for medical treatments.

5.  Several weeks later in February 2016 the Applicant was abducted by the same group of SAD supporters and was taken by force to a deserted place where they pointed a pistol at his head threatening to shoot him if he still refused to heed their demand to leave INC, and eventually they allowed him to leave after firing some gun shots into the air to frighten him.

6.  The Applicant then went straight to the Kathunangal Police Station to report on the threats and abduction, instead the police tried to detain him but he managed to make his escape and fled from the station to run home.

7.  After the incident the Applicant became fearful for his life and fled to Bal Pind to hide in his uncle’s place, but later when he heard that those SAD supporters were coming after him at Bal Pind, the Applicant on 28 March 2016 departed India for Hong Kong, and when he was refused entry he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 9 May 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

8.  By a Notice of Decision dated 22 June 2016 and a Notice of Further Decision dated 14 February 2017 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”).

9.  In his decisions the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from those local SAD supporters upon his return to India as low due to the low intensity and frequency of past ill‑treatment from them, that there is no evidence of any real intention of them to seriously harm or kill him other than to harass and intimidate him which were common between rival supporters, nor was there any political reason for the SAD people to specifically target him for harm given that he then was just an ordinary teenage INC supporter without any official post in the party, that in any event in the absence of 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 2.9 million square kilometers that it would not be unduly harsh for the Applicant as an able-bodied young adult to move to other areas of the country away from his home district in large cities such as Delhi where it would be difficult if not impossible for those local SAD supporters to locate him.

10.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decisions, and for which he attended an oral hearing on 16 April 2019 with his lawyer from DLS before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board as well as submissions made on his behalf by his lawyer.

11.  It is relevant to note that at his appeal hearing the Applicant’s lawyer suggested that the Board should adjourn the hearing and to make arrangement for the Applicant to undergo a psychological assessment on the basis that the Director only focused on the physical injuries suffered by the Applicant to conclude that they did not attain the minimum level of severity without addressing the psychological harm suffered by him during the abduction incident when he was threatened to be shot by those SAD supporters that as a “young boy” he must have been traumatized by such an experience that high standards of fairness would require the Board to also have regard to the mental stress suffered by the Applicant, but that the Applicant’s request was refused by the Board upon noting of no suggestion or indication of any symptoms of a traumatized victim in the past at various stages of his claim until the appeal hearing, nor was there any details with regard to any mental harms said to have been suffered by him to support or justify his request made only at the hearing, and that it appeared from his screening interview before the Director that the Applicant did not have any problems giving oral evidence or addressing questions that were put to him that the Board was of the view that he was competent to proceed with his appeal hearing without any further delay.

12.  By a Decision dated 26 June 2019 the Board dismissed the Applicant’s appeal and also confirmed the Director’s decisions upon finding material inconsistencies discrepancies and implausibility in the Applicant’s evidence that it did not consider his claim to be credible or reliable and rejected the credibility of his claim of fear of harm from those local SAD supporters that caused him to leave his country to come to Hong Kong to seek protection, that even if his account were true that there was no reliable evidence of any real intention of those SAD supporters to seriously harm or kill him or to still have any adverse interest in him after all these years since he left the country in 2016, and that in any event in the absence of any official involvement that state or police protection would be available to the Applicant upon his return to India as well as reasonable internal relocation alternatives for him to move safely to other parts of the country away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.

13.  On 10 July 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward various grounds for his intended challenge, of which he confirmed at the hearing as follows:

(1)  That it was procedurally unfair or unreasonable in the Board’s failure or refusal to call for a psychological assessment of the Applicant due to the trauma he had experienced during the abduction incident when those SAD supporters threatened to shoot him with their guns;

(2)  That the Adjudicator was biased against the Applicant and/or wrongly based on his own assumptions or “common sense” in assessing the credibility of the Applicant’s claim;

(3)  That the Board failed to take any or proper account of the fact that the Applicant was a minor at the time when he experienced the traumatic events of his claim.

14.  For the Applicant’s complaint under Ground (1) of the Board’s failure or refusal to call for a psychological assessment on him due to the trauma he claimed to have experienced in the alleged abduction incident, as noted above ([11]) that it was a request made by his lawyer only at the appeal hearing without any prior application or notice to the Board or any evidence in support other than those as stated in the Applicant’s claim and set out in his NCF, and as it was clearly a discretion of the Board to be exercised on evidential basis, and as rightly pointed out by the Adjudicator in the decision that there was none whatever that had ever been pleaded or stated or even suggested or indicated by the Applicant from the time when he first raised his claim to the Director and at any stage thereafter either in his all-important NCF prepared on his instructions to his lawyer to the time when he underwent “lengthy and in-depth” screening interview before an immigration officer in the presence of his same lawyer to suggest or indicate that he had ever suffered or manifested any mental or psychological effect or impact or harm so caused by the alleged abduction incident.

15.  Furthermore, and as again also noted by the Adjudicator, on the factual basis of the Applicant’s own case that the abduction incident took place in February 2016 when he was by then already aged 17 ½ and almost an adult, and certainly not exactly a “young boy” anymore as argued by his lawyer in his request for a psychological assessment before the Board, and more significantly as observed by the Adjudicator that the Applicant had been able and competent to give evidence and answer questions raised of his claim without any problem to warrant any psychological assessment, or to indicate any mental sufferings which may be relevant to the determination of the risk that may be faced by the Applicant in his home country. As such, and given the fact that the Board rejected the Applicant’s claim not on the basis or finding that his claimed ill-treatments did not attain the minimum level of severity to amount to torture, I do not find any fault or error in the Adjudicator’s exercise of his discretion to refuse the request to call for a psychological assessment on the Applicant for the purpose of the assessment of his claim.

16.  As for Ground (2) of the Applicant in which he complains that the Adjudicator based on his own “common sense” to question or reject the credibility of his claim of being involved in politics at the age of only 13 or 14 just because it is not common in Hong Kong and was therefore wrong or biased against the Applicant in assessing the credibility of his claim, but there is no question in my mind that a 13 or 14 years old is considered as anything other than a child anywhere in the world or in any society, and that the Applicant never produced any evidence to the contrary or to suggest that it was not uncommon for a child at that age to be involved in politics in India, or at least in the way he claimed to have been involved in the politics of INC including campaigning for the party (see [6] of Director’s Decision), of which it was clearly his duty to establish to the Board, but as correctly found by the Board that he had failed to do so. In any event the Board rejected the credibility of his claim not due to any age factor but on the basis that his account of events prior to his departure of India was not credible or reliable. Accordingly I do not find this ground of the Applicant reasonably arguable for his intended challenge.

17.  As for the remaining Ground (3) in which the Applicant complains that the Board failed to take account of the fact that he was still a minor when he experienced those traumatic events in his claim, it is clear from the decision that the Board did with good reasons raise issue with the credibility of the Applicant’s account of events in his claim including his alleged involvement in politics at the age of 13 or 14, as well as his claimed ill‑treatments inflicted by SAD supporters, and the fact that it also correctly assessed the availability of both state protection and internal relocation to the Applicant now as an adult to safely return to India without any risk of his claimed harm that this complaint of the Applicant would not assist or advance his case in any event, and is in my view also not reasonably arguable for his intended challenge either.

18.  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.

19.  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 41 – 47 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.

20.  Furthermore, the fact is that it has also been established by both the Director and the Board in their respective decisions that the risk of harm in his 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, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

21.  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.

22.  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.

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