BIKRAMJEET SINGH v. TORTURE CLAIMS APPEAL BOARD

HCAL 789/2025

[2025] HKCFI 2241

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 789 OF 2025

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;

1.  Extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 30 May 2024 be refused; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 30-year-old national of India who entered Hong Kong illegally on 30 September 2023 and was arrested by police on the same day. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim for protection on the basis that if he returned to India he would be harmed or killed by the son of his father’s former business partner over their monetary dispute. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Boparai Kalan, Amritsar, Punjab, India where his father used to run a wheat and rice wholesale business with a partner Gurnaam from his home village.

3.  Gurnaam had a son Sharanjit who was a local gangster arrested for murder in 2017 and was subsequently sentenced to prison.

4.  In 2018 Gurnaam sold his share in the business to the Applicant’s father before his death in 2019, and after the Applicant’s father also passed away in the same year, the entire business was therefore passed on to the Applicant’s family.

5.  However, when Gurnaam’s son Sharanjit was released from prison in 2023, he insisted that his father’s share in the business should be returned to him or that he be given a large sum of money as compensation, and when the Applicant and his family refused, Sharanjit then threatened to kill him by pulling out a pistol and pointed at the Applicant, but as other villagers started to gather, Sharanjit decided to walk away, but not before he warned the Applicant that next time he would kill him if his family still failed to pay him for his father’s share in the business.

6.  As the Applicant became fearful for his life, and on his mother’s advice, he decided to leave the country and on 23 September 2023 departed for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 3 November 2023 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.  By a Notice of Decision dated 25 January 2024 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”).

8.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from Sharanjit upon his return to India as low due to the low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of to seriously harm or kill him other than to squeeze money from him and his family, that in any event it was a private monetary dispute between the Applicant’s family and Sharanjit only without 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 1.4 billion people spread across a vast territory of more than 3.2 million square kilometers that it would not be unduly harsh for the Applicant as an able-bodied and educated young adult to move to other areas of the country away from his home district in large cities such as Mumbai or Delhi where it would be difficult if not impossible for Sharanjit to locate him.

9.  On 6 February 2024 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 14 May 2024 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 30 May 2024 his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  In its decision the Board accepted the Applicant’s claim of fear of harm from Sharanjit due to their dispute over the share of Sharanjit’s father in the business but found no evidence of any real intention of Sharanjit to seriously harm or kill the Applicant given the fact that none of his family’s members has ever been harmed by Sharanjit since the Applicant left the country, and that in any event it was a private monetary dispute between the Applicant’s family and Sharanjit only without 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 by Sharanjit that his claim for non-refoulement protection failed on all applicable grounds.

11.  On 31 March 2025 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge:

(1)  That the Board failed to assess the Applicant’s situation properly that its suggestion on internal relocation was not reasonable as it would be unduly harsh for the Applicant to do so;

(2)  That the Board failed to adequately consider the clear risk faced by the Applicant if returned to India given the fact that he had suffered both physically and mentally that the Board’s assessment of the risk was insufficiently evaluated;

(3)  That the Board failed to properly assess the relevant COI that the Indian government would not be able to protect its citizens from torture which further emphasizing the systemic abuse prevalent in the country;

(4)  That the Board’s decision failed to adequately reflect the unique circumstances of the Applicant including his background and potential persecution due to his political beliefs or activities with the implication of returning him to a harmful environment also not thoroughly considered with overlooking of documented cases of abuse;

(5)  That the Board failed to acknowledge the international’s obligation under treaties such as the UN Convention Against Torture which prohibits the return of individuals to countries where they may face harm that such oversights collectively undermined the integrity of the decision and warrant a reconsideration of the Applicant’s asylum claim.

12.  By then the Applicant was however out of time with his application, as Order 53 rule 4(1) of the Rules of the High Court, Cap. 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made.

13.  As the last day of the three-month period for him to file his Form 86 fell on 30 September 2024 after discounting the month of August for the court’s vacation, the Applicant was therefore some 6 months late with his application, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

14.  In the Applicant’s case, a delay of 6 months must be considered as substantial and inordinate, for which he explained at the hearing of his application that he never received the decision in the mail, and that it was only sometime in March 2025 when he reported on his recognizance that he was informed by his immigration officer of the decision, but by then he was already out of time with his intended application.

15.  The record shows that the decision was sent on the same day of 30 May 2024 to the Applicant’s then reported address without being returned through undelivered post, and in the absence of any reliable evidence from the Applicant to corroborate his bare assertions, I am not satisfied that he has provided any credible justification for his such serious delay.

16.  As for the merits, if any, of his intended application, those grounds put forward by the Applicant are all just bare and vague assertions of the Applicant containing a few key words or phrases but without any relevant or necessary particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy was the concept of torture to the Applicant’s case when on the factual basis of even his own case that it was a private monetary dispute between his family and Sharanjit only without any official involvement or political element at all. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for his intended challenge.

17.  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.

18.  In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in his claim 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.

19.  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.

20.  For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his serious delay, I refuse to extend time and accordingly dismiss his leave 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