Bhangu Harpreet Singh v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3558/2019

[2025] HKCFI 2078

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3558 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

Order by Deputy High Court Judge (Non-refoulement Claims) Teresa Wu:

(1)   Form 86 be amended, naming the Director of Immigration as the Putative Interested Party.

(2)   The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.By Form 86 dated 2 December 2019, the Applicant applies for leave to apply for judicial review (“the Leave Application”) of the decision of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) dated 27 November 2019 (“the Board’s Decision”) confirming the decision of the Director of Immigration (“the Director”) dated 8 August 2018 (“the Director’s Decision”), which rejected his non-refoulement claim on all applicable grounds (“the Grounds”) under the Unified Screening Mechanism (USM).

2.On my own motion, I have amended Form 86, correctly naming the Direction rather than the Board as the proposed interested party.

Background

3.The material facts of this case, including the Applicant’s personal background, the incidents alleged to show that he would be harmed or killed by a drug trafficker in India, and the immigration and procedural history, etc. have been set out comprehensively in the Board’s Decision.  It is not necessary to repeat them all over again.  For completeness’ sake, reference can be made to the Board’s Decision, the hyperlink to which is included below[1].  Unless otherwise specified, I will also adopt the Board’s abbreviations and descriptions herein.

Discussion

4.I have considered the Board’s Decision with rigorous examination and anxious scrutiny, applying an enhanced standard as required by law owing to the seriousness of the issues at hand.  I am satisfied that the Board had correctly set out the burden and standard of proof, the law and key legal principles relating to the Grounds under the USM, and observed a very high standard of fairness.

5.In gist, the Applicant stated he was making the application to the Board due to a risk to his life in India.  He believed that the police had informed the drug traffickers that he had complained about them, resulting in these drug traffickers searching for him everywhere.  According to the Applicant, it was difficult for them to locate him as he had cancelled his identity proof.  He also referred to an attack in Hong Kong, claiming that he would have been killed if he was in India.

6.After going through all the evidence adduced by the Applicant and applying the relevant law and legal principles related to the issues and the Grounds, the Board found as follows:

(1)  The Applicant’s evidence given during the hearing was “vague and unpersuasive”.  Additionally, the Applicant failed to mention crucial aspects of his written claims.  The Board did not accept the Applicant’s explanation regarding this issue and considered his failure to recall these aspects indicative of the fact that his claim was fabricated.

(2)  Regarding the attack in Hong Kong, the Applicant had not provided any evidence to support his claim that he was assaulted by a group of Indian men.  The Board did not accept that he would be unable to provide records of such incident if it had indeed occurred. 

(3)  The Board concluded that even if the Applicant had been assaulted in Hong Kong by a group of Indian men, there was no connection to his complaint to the police in India regarding drug matters.  These individuals lacks means or motivation to track the Applicant from India to Hong Kong, or to orchestrate an attack here.

(4)  The Board found that the Applicant was not a credible witness and inferred that he attempted to exploit an unrelated incident to fabricate claims for protection in Hong Kong.

7.The Board went further concluded that even if the Applicant’s claims were true, he could safely reside in another part of India.  It was not accepted that the police had any interest in the Applicant or would pursue him regarding his false case.  The Applicant’s own evidence indicated that he had lived in New Delhi for approximately three months, working as a driver, and he was not harmed.  Additionally, he had not faced any harm in his own area, nor had any action been taken against his family.  The Board was not satisfied that several years after the Applicant reported the drug dealers to the police, they would still have any desire to seek him out or harm him in other parts of India.  Moreover, these individuals simply lacked the means or motivation to pursue the Applicant.

8.Consequently, the Board was not persuaded that the Applicant’s claim based on Torture risk, BOR 3 risk, BOR 2 risk or Persecution risk could be substantiated.

9.It is well-established that the role of the Court in a judicial review is not to provide a further avenue of appeal (see 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, etc.).  The Applicant has not shown any error of law, procedural unfairness, or irrationality in the decision of the Board that would warrant court intervention.  The assessment of evidence regarding the COI, risks of harm, state protection, and viability of internal relocation was primarily within the Board’s jurisdiction.  The Board was entitled to evaluate the available evidence and decide the weight to be given to it. 

10.I am not therefore satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success (see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676).

Conclusion

11.I accordingly make an order that the Leave Application be dismissed.

Dated the 21^st day of May 2025

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