RAM SARUP SINGH v. TORTURE CLAIMS APPEAL BOARD

HCAL 3348/2019

[2025] HKCFI 3939

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3348 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.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”.

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 29 October 2019 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 10 October 2019 (“the Board’s Decision”) affirming the decision of the Director of Immigration (“the Director”) dated 16 March 2018 (“the Director’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003348_2019_files/the_Board's_Decision.pdf

2.  The Board found that the applicant failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board confirmed the Director’s Decision, which rejected the applicant’s non-refoulement claim.

Amendments

3.  In the title of Form 86, the applicant named “Torture Claims Appeal Board / Non-refoulement Claims Petition Office” as the 1^st Putative Respondent and “Director of Immigration” as the 2^nd Putative Respondent.

4.  In the content of Form 86, the applicant named “Torture Claims Appeal Board/ Non-refoulement Claims Petition Office” as the proposed respondent.

5.  However, only the Board should be the putative respondent in the Leave Application, as the decision in respect of which relief is sought is just the Board’s Decision.

6.  The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board and should not be named as a putative respondent at all.

7.  Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board”.

The applicant’s case

8.  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.

9.  In sum, the applicant claimed for non-refoulement protection because he feared that if returned to India, he would be harmed or killed by his Uncle named Gurcharan Singh (“GS”) due to a land dispute with him.

Oral hearing

10.  The applicant requested for an oral hearing of the Leave Application and his case was heard on 12 June 2025.

11.  When invited to elaborate the grounds for his intended judicial review, the applicant said that he prepared the document annexed to his Form 86 with the title “Grounds on which Relief is sought” and wanted to rely on them to challenge the Board’s Decision, but he could not provide any further particulars of those grounds.

Grounds for judicial review

12.  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).

13.  The applicant annexed a document to Form 86 with the title “Grounds on which Relief is sought”. The contents of this document are reproduced as follows:-

“1. I believe that the Director of Immigration and the Adjudicator of Appeal Board reached the decision wrongly in assessing my Non-refoulement claim. I believe the decisions were not reasonable and fair (as required by the Wednesbury test). Indeed, the right to life is protected under Article 28 of the Basic Law and Article 2 of the Bill of Rights. In practice, the right to life is mainly protected by the criminal law and it must be protected from extra-judicial killings that I may face if I am deported back to my country.

2. From the Director’s Decision, it is evident that the director has failed to appreciate or give the proper importance or weightage to the presence of state Acquiescence in my case. This has indeed led to an unfair outcome of rejecting my non-refoulement claim. I was tortured at the Behest and the state law enforcement agencies as well as those in the high ups of political circles. It is submitted that the state would be rendered liable to me by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence.

3. The Adjudicator acted unreasonable and was procedurally unfair by placing too much reliance on Country of Origin Information but failed to take my personal background and experience into account. Further, I submit that although the Director had listed relevant COIs which support the aversions that the police in my country would not be able to protect. The Director failed to consider or give enough weightage to those evidence and ruled otherwise.

4. I submit that the Director has failed to take such argument into account or that the Director has failed to give enough weight to such argument before reaching the Decision. This was a clean case of unfair attitude shown by the Director which in itself is enough to render his Decision void. In Fact, the corruption and incompetency of the administration in my country is still a very serious problem. Various human rights organization has complied reports on the matter which stated testament to my assertions.

5. Further, the director has failed to attain the high standard of fairness required by the Wednesbury test in the decision with the arguments put forward above. As such, the decision of the director should be considered unreasonable in the scope of Public Law.

6. The Adjudicator was procedurally improper and/or unfair when assessing whether to accept or not to accept explanations provided by me, and unreasonably requires me to response to questions that I was not in a position to offer any response. The Adjudicator failed to take into account the nexus of political parties and official corruption which exists in my country, making the persecution effectively persecution by the State.

7. The Adjudicator made a ruling to dismiss my appeal/petition in the Torture Claims Appeal Board/Non-refoulement Claims Petition Office based on findings which the Adjudicator ought to allow the appeal/petition, and thus the Decision was irrational.

8. I humbly ask this Honorable Court to grant leave to have the Decision judicially reviewed.”

14.  The said document with contents as stated above was in fact used by many applicants in similar applications as their grounds for applying leave to judicially review the Board’s decisions. It is like a template for such applicants and they just used the grounds stated therein without any regard to their own situations. Nevertheless, as the applicant is relying on the above grounds to make the Leave Application, this court will still deal with the grounds as discussed below.

Discussion

15.  First of all, some of the above grounds were directed at the Director. As 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), the Director’s Decision cannot be the subject matter of the Leave Application. This court will therefore consider only those grounds directed at the Board in respect of the Board’s Decision.

16.  Paragraphs 2, 4 and 5 of the applicant’s grounds were directed at the Director. Hence, they could not be used to challenge the Board’s Decision and can be simply ignored. Paragraph 8 of the grounds was just asking this court to grant leave to have the Board’s Decision judicially reviewed. It is not a ground at all. Thus, only paragraphs 1, 3, 6 and 7 of the grounds are relevant to the Leave Application.

17.  In paragraph 1 of the grounds, the applicant alleged that the adjudicator of the Board reached the Board’s Decision wrongly and it was not reasonable and fair as required by the Wednesbury test. However, the applicant did not state how or why the Board’s Decision was wrong, unfair and unreasonable. It does not help the applicant to establish any ground by just mentioning the right to life in paragraph 1.

18.  In any event, the Board did assess the applicant’s risk of right to life. The Board found from the applicant’s evidence that he was slapped by GS once and attacked by his cousin and 3 other men on the second occasion. He only sustained bodily harm on the second occasion. In the second attack, one attacker slashed him with a kirpan. The Board considered that given the number of men involved in the second attack, the applicant could have been killed if the attackers had the real intention to do so. Coupled with the fact that the applicant had encountered GS once or twice after his return from a 4 years’ employment in other places of India but GS did no harm to him, the Board concluded that there was no evidence to show GS had exhibited intense or sustained effort to harm or kill him.

19.  Thus, the Board did not accept that the applicant would face a genuine and substantial risk of his right to life being violated, any risk of capital punishment or arbitrary deprivation of life from GS.

20.  In paragraph 3 of the grounds, the applicant alleged that the adjudicator acted unreasonably and was procedurally unfair by placing too much reliance on country of origin information (“COI”) but failed to take his personal background and experience into account. However, the applicant did not state which aspects of his personal background and experience had not been taken into account by the Board.

21.  In fact, the Board did consider the applicant’s personal background and experience. The Board considered all the matters claimed by the applicant that gave rise to his non-refoulement claim. It was the Board’s finding that the applicant failed to establish a real risk of ill-treatment, arbitrary deprivation of life and persecution. If the applicant is seeking to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.

22.  The applicant further alleged in paragraph 3 of the grounds that although the Director had listed the relevant COI which supported the aversions that the police in his country would not be able to protect, the Director failed to consider or give enough weightage to those evidence and ruled otherwise. This is just a vague and general accusation without any specificity.

23.  The Board did make findings from COI about police in India taking “short-cuts” by refusing to register crime complaints as a result of systemic problems. It also noted the problem of corruption by officials at all levels of government. The Board did assess the applicant’s claim that the local police refused to help him because it was a private land dispute, but found that it did not necessarily imply the misconduct of the Indian police as a whole. The Board found from reliable COI that on-going reforms with positive results were in place and there was legal protection to citizen in India. The Board concluded that reasonable state protection was available to the applicant if he resorted to the Indian authorities after his return.

24.  In paragraph 6 of the grounds, the applicant alleged that the adjudicator was procedurally improper and/or unfair when assessing whether to accept or not to accept explanations provided by him, and unreasonably required him to respond to questions that he was not in a position to offer any response.

25.  This accusation is simply untrue. The Board determined the applicant’s appeal/petition on paper without a hearing. The applicant could not possibly be questioned and asked to respond to questions that he was not in a position to offer any response.

26.  In paragraph 7 of the grounds, the applicant simply alleged that the adjudicator ought to allow the appeal/petition and the Board’s Decision was irrational. There was no particulars or reasons given to say how or why the Board’s Decision was irrational.

27.  As held by the court of appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”. Thus, none of the aforesaid paragraphs in the grounds could establish any valid ground to challenge the Board’s Decision when they are so vague and general without any requisite particulars related to the applicant’s case.

28.  It is therefore this court’s finding that the applicant has failed to establish any valid ground for challenging the Board’s Decision.

29.  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).

30.  Thus, even though the applicant has failed to establish any valid ground for challenging the Board’s Decision, this court will still scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.

31.  This court noted that the Board assessed the applicant’s appeal/petition without an oral hearing and adopted the approach of a re-hearing by examining all the documentary evidence afresh. The Board’s reasons for not having an oral hearing were that after reviewing the whole case of the applicant, it found that no worthwhile and effective representation could be made and there would be no procedural unfairness to the applicant if his appeal was determined without an oral hearing.

32.  There is no absolute right to an oral hearing. The question of whether an oral hearing should be afforded must be decided by the adjudicator at the petition stage after considering all relevant circumstances. Ultimately, what is in issue is the question of fairness, and in the present context, high standards of fairness are involved (see St v Betty Kwan and the Director of Immigration, CACV 115/2013).

33.  Thus, it was not a must for the applicant to have an oral hearing before the Board. The Board had considered all the matters raised by the applicant in relation to his non-refoulement claim, including his doubt about the capabilities of the Indian police to protect him, and the reasons he gave for not being able to relocate to other places in India.

34.  This court agrees with the Board that an oral hearing was not necessary. There was no procedural unfairness to the applicant when everything he had raised had been fully assessed and addressed by the Board.

35.  After due consideration of the law and all the evidence as presented by the applicant, the Board found that the applicant was not entitled to non-refoulement protection on any of the applicable grounds under the USM.

36.  Although the Board considered it unnecessary to make any finding on internal relocation since there was no real risk of any of the proscribed forms of harm for the applicant, it nevertheless found that the applicant could reasonably relocate to elsewhere in India and earn a living if he needed to. Internal relocation was permissible in India. It would be very difficult for GS to locate him among such a large population and it was doubtful that GS had large influence and sufficient resources to locate him in such a large country.

37.  The finding of facts was solely within the ambit of the Board. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

38.  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.

39.  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

40.  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