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

HCAL 3568/2019

[2025] HKCFI 2081

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3568 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 only the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office and the Director of Immigration as the Putative Respondent and the Putative Interested Party respectively.

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

Observations for the Applicant:

Introduction

1.By Form 86 (“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 30 October 2019 (“the Board’s Decision”) affirming the decision of the Director of Immigration dated 29 August 2018 (“the Director’s Decision”), which rejected his non-refoulement claim on all applicable grounds under the Unified Screening Mechanism (USM).

2.In Form 86, the Applicant has mistakenly referred the Director as one of the proposed respondents and the Board as one of the interested parties, which I have corrected on my own motion.

Background

3.The Applicant’s personal background, the incidents alleged to show that he would be harmed or killed in India by his paternal uncle due to a land dispute, and the immigration and procedural history, etc. were set out in the Board’s Decision.  It is not necessary for me to restate them here.  For completeness’ sake, reference can be made to the Board’s Decision, the hyperlink to which is included below[1]. The Board’s abbreviations and descriptions are adopted below unless otherwise indicated. 

Discussion

4.I am not satisfied that the Applicant’s intended challenge of the Board’s Decision – primarily based on the lack of free legal representation during and prior to the submission of his claim and the appeal process – is reasonably arguable with any realistic prospects of success (see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676).

5.It is crucial that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v. Director of Immigration HCAL 51/2007 prescribes that a CAT claimant or a claimant of BOR 2 or BOR 3 or persecution risks has an absolute right to free legal representation at all stages of the proceedings (see Re Zafar Muazam, CACV 2/2018 (unreported, 23 March 2018), Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, and Re Lopchan Subash [2018] HKCA 37).

6.The Applicant did not express any concerns regarding the lack of legal representation during the hearing before the Board.  Both the Applicant and the interpreter confirmed their mutual understanding.  After the procedure for the appeal was explained, the Applicant acknowledged that his submitted documents were accurate and that he understood the Director’s Decision regarding his claim.  Furthermore, the Applicant stated that he would not make any further submission, either oral or written, to the Board, and would not answer any inquiries, despite being advised of his burden of proof.  Notably, the Applicant never indicated a need for legal representation and was able to make decisions without difficulty after the procedure was clarified.   

7.I have considered the decision of the Board with vigorous examination and anxious scrutiny, applying an enhanced standard in view of the seriousness of the issues at hand (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14).  It was evident that the Board was not satisfied that there was evidence, or reliable evidence, to show:

(1)   the existence of the land disputes, the Verbal Threats and the Incident.  The threats from the Uncle, if any, were of very low frequency and intensity.  Those threats fell short of the required level of a genuine and substantial risk.

(2)   the Uncle was a public official relating to the state of India.  He was at most a land owner and member of the Congress Party at the village level, and not a state actor.  No public official, or persons able to wield the authority of the government and/or state had any connection with the Applicant’s claim.

(3)   the Uncle had ill-treated the Applicant with an intention listed in the definition of torture.

(4)   the alleged ill-treatment of the Applicant, if any, had any relevance to the interest and/or benefit of the government of India.

(5)   the Appellant had a well-founded fear of persecution for one or more of the RC reasons.

(6)   the state of India was unwilling or unable to afford protection to the Applicant.

(7)   the government of India was unwilling to help the Applicant for a Convention reason, or for any other reason.  In fact, the Applicant conceded that he did not seek assistance from the police or any relevant government authorities. 

8.On the basis of these findings, the Board took the view that the Applicant had failed to show Persecution Risk, BOR 2 Risk, BOR 3 Risk, or Torture Risk:

(1)   The Applicant could not, on the facts, bring himself within any of the grounds enumerated in the definition of refugee.

(2)   There was nothing to indicate that the Applicant would be at risk of harm contrary to BOR 2.

(3)   The Applicant could not show that the government in India failed to provide reasonable protection to him.

(4)   The Applicant had failed to show the elements in the definition of torture.  He had also failed to show any evidence of acquiescence or failure of due diligence.

(5)   The Applicant had not claimed, nor adduced evidence to show, that a consistent pattern of gross, flagrant or mass violations of human rights existed in India.

(6)   The Applicant would not be able to re-establish himself in his home state or elsewhere in India.

9.The above assessment was within the Board’s province to make.  In the absence of any valid public law errors or grounds being shown, the role of the Board should not be usurped.  The Court’s role in a judicial review is not to provide a further avenue of appeal (see Re Zunariyah (supra); Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163).

Conclusion

10.For the above reasons, the Leave Application is 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