Manpreet Singh v. Torture Claims Appeal Board

HCAL 2135/2023

[2025] HKCFI 2235

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2135 OF 2023

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 / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 38-year-old national of India who entered Hong Kong illegally on 27 October 2020 and surrendered to the Immigration Department on 12 January 2021 when he raised a non-refoulement claim for protection on the basis that if he returned to India he would be harmed or killed by his girlfriend’s family who objected to their relationship. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised as a Sikh in Village Talwandi Rai, Fatehwal, Tehsil Ajanla, Amritsar, Punjab, India. After leaving school he worked as a construction worker, and dated a Hindu girl from his home village, but due to their different religions and caste his girlfriend’s family in particularly her father who was said to be some politician with influence in the village was not happy about their relationship.

3.One day in 2018 while they were having a date in a hotel room, his girlfriend’s father and some men with guns burst in, but the Applicant managed to jump from the window and fled from the scene.  

4.As he became fearful for his life, the Applicant fled to New Delhi and took shelter in a friend’s place, and on 20 January 2019 he departed for China where he stayed for some 21 months selling toys to make his living until 27 October 2020 when he 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 23 September 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

5.By a Notice of Decision dated 15 March 2022 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”).

6.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 his girlfriend’s family upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill him other than to deter him from seeing his girlfriend, that in any event it was a private and personal dispute between him and his girlfriend’s family 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 1.3 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 adult with working experience to move to other areas of the country away from his home district in large cities such as New Delhi where he had stayed before without incidents and where it would be difficult if not impossible for anyone to locate him.

7.On 21 March 2022 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 23 February 2023 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 23 November 2023 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from his alleged girlfriend’s family that caused him to leave the country to come to Hong Kong to seek protection, that it did not find him to be a witness of truth and rejected his claims of being involved in a relationship with a Hindu girl but which was objected by her family or that he left the country to avoid being harmed or killed by her family, that instead he left India for China where he had stayed for more than 21 months without seeking protection was believed to be seeking for jobs, and that it was for the same reason that he subsequently sneaked into Hong Kong, and that he had fabricated his case just to support his claim that it concluded that his claim for non-refoulement protection failed on all the applicable grounds.    

9.On 29 November 2023 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1) That the Adjudicator did not consider his claim properly and dismissed it even without taking time to think about the risk to his life in his home country;

(2) That the Adjudicator unreasonably refused to accept the documents produced by the Applicant as they were in his native language without English translation and refused to give him time to arrange for them to be translated into English;

(3) That the interpreter was not helpful to the Applicant and was impatient to him during his appeal hearing before the Board.          

10.These are however just some bare and vague assertions of the Applicant without any necessary or relevant 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 consider his claim properly or to allow him to produce his documents which even up to now that the Applicant has failed to identify, or in what way was the interpreter unhelpful or impatient towards him during his appeal hearing before the Board. 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.

11.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.

12.In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 38 – 63 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

13.Furthermore, the fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim even if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, a decision also agreed and confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.                

14.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.

15.Moreover, the Applicant recently on 13 March 2025 filed an affirmation requesting to withdraw his application as he now wants to return to his home country.

16.In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation of his wish to return to his home country, I accordingly dismiss his leave application.

Dated the 3^rd day of June 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