Balwinder Singh v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 2881/2019 on BabelCite. This High Court CFI judgment was delivered on 20 May 2025.
1. The applicant applies for leave to apply for judicial review of the Decision dated 23 September 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).
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HCAL 2881/2019 [2025] HKCFI 1694 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 2881 OF 2019 _____________ BETWEEN
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_____________ JUDGMENT _____________ THE APPLICATION 1.The applicant applies for leave to apply for judicial review of the Decision dated 23 September 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”). 2.The applicant asked for a hearing. He appeared the Court on 9 April 2025. 3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party. The applicant 4.The applicant, aged 31, is a national of India. He came to Hong Kong on 8 February 2015 as a visitor and was permitted to stay as such. However, he overstayed and surrendered to the Immigration Department on 25 February 2015. He lodged his non-refoulement claim on the basis that, if refouled, he will be harmed or killed by his uncle because of a land dispute. 5.According to the applicant, his uncle wanted to purchase the piece of land inherited by his father. His father refused to sell it to him. He threatened to frame up his father and his family. He and his sons had carried out their plan by slapping him and his father causing injuries to them; sending some gangsters to assault his father and him, causing fracture of his left arm, back and head injuries and leg injuries to his father and they had to be admitted in hospital for medical treatment for 15 days. His father and he had to move to live in his maternal aunt’s home in Jalandhar. His uncle had also framed him up of possession of illegal arms. He was taken to the police station where he was assaulted by police officers by slapping and kicking, forcing him to make admission of guilt. He and his father had reported the incidents to police, which did not take any action. His father arranged for him to leave and he came to Hong Kong in about February 2015. 6.Details of his claim are set out at paragraph 6 of the Notice of Decision dated 22 August 2018 (“the Director’s Decision”). The Director’s Decision 7.The Director considered the applicant’s claim in relation to the following risks:
8.By way of the Director’s Decision, the Director dismissed the applicant’s claim. In elaboration, the Director found that (i) the low intensity of the ill-treatment from his uncle and his people in the past is indicative of a small future risk; (ii) state protection is available if he returns to India; and (iii) internal relocation is viable. [17]-[25] The Board’s Decision 9.The applicant appealed the Director’s Decision to the Board. On 23 August 2019, the Board conducted an oral hearing for his appeal. 10.Having considered the evidence [42]-[52], the Board dismissed his appeal and confirmed the Director’s Decision for the reasons below.
Application for leave to apply for judicial review of the Board’s Decision 11.The applicant has filed Form 86 dated 30 September 2019 for leave to apply for judicial review of the Board’s Decision. 12.In his affirmation in support of his application, the applicant did not raise any specific ground to challenge the Board’s Decision. DISCUSSION 13.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1). 14.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant simply asked the Court to review the Board’s Decision. 15.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held: “13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.” 16.The Board, for the reasons given above, found that the applicant’s evidence not acceptable. 17.There is no valid ground from the applicant to challenge the Board’s Decision. 18.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision. DISPOSITION 19.I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.
The applicant appeared in person. |
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