Case Document

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HCAL 1380/2021

[2025] HKCFI 2632

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1380 OF 2021

BETWEEN
	Singh Barinder	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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 63-year-old national of India who last arrived in Hong Kong on 14 July 2006 as a visitor with permission to remain as such up to 28 July 2006 when he did not depart and instead overstayed, and was arrested by police on 27 November 2006. After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to India he would be harmed or killed by his sister-in-law over their land dispute in his home village and/or by his fellow villagers for converting his religion from Sikhism to Christianity, and after it was rejected he then sought non-refoulement protection on the same bases. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised as a Sikh in Malerkotla, Sangrur District, Punjab, India where he with his elder brother jointly inherited some land from their father in his home village.

3.In 1984 the Applicant went to Lebanon to work in the construction field, and there he met and married his wife who was a Filipino citizen also working there, and subsequently converted to her religion as a Christian.

4.In In 2005 he returned with his wife to India when he discovered that his elder brother and sister-in-law had taken over his share of the land in his home village and refused to return it to him, while his sister-in-law even threatened to harm him and to make false claim against him as to his religious conversion into Christianity to other villagers who may also harm or kill him, and so the Applicant became fearful for his life that he therefore departed India in July 2006 for Hong Kong where he subsequently overstayed, and upon his arrest by the police he then raised his torture claim, and after it was rejected by the Immigration Department he then sought non-refoulement protection, for which he completed a Supplementary Claim Form (“SCF”) on 1 June 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.By a Notice of Decision dated 26 July 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including 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 found no substantial grounds for believing that there will be any real and substantial risk of harm upon his return to India due to the absence of or low intensity and frequency of past ill-treatment from his sister-in-law or his fellow villagers, that there is no evidence of any real intention of his sister-in-law to seriously harm or kill him due to their private land dispute within their family or of any evidence of any threats from his fellow villagers over his alleged religious conversion, that in any event in the absence of 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 1.2 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 Mumbai where it would be difficult if not impossible for anyone to locate him.

7.On 2 August 2018 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 3 June 2021 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 24 August 2021 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision the Board accepted the Applicant’s claim of land dispute with his sister-in-law in his home village but found no evidence of any real threats of harm from his sister-in-law over their dispute within their family, and that on his own concession made at his appeal hearing before the Board of no longer any fear of threats from any fellow villagers over his alleged religious conversion that the Board concluded that the Applicant will not face any risk of any harm from anyone upon his return to India that his claim for non-refoulement protection failed on all applicable grounds.

9.On 30 September 2021 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date in which he just stated that he rejects the decision as it disregarded his dangerous situation but without providing any details or particulars or elaboration as to how it did so. As such, and in the absence of any error of law or irrationality 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 for his intended challenge.

10.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.

11.In the Applicant’s case, the fact is that it has been correctly 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.

12.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.

13.Moreover, the Applicant recently on 14 February 2025 filed an affirmation stating that he now wants to return to his home country in India but without providing any explanation as to what has happened to his claimed risk in his home country.

14.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, I therefore refuse to grant leave and accordingly dismiss his application.

Dated the 26^th day of June 2025

(Chung Lai Fan, Christine)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 26 June 2025 Singh Barinder Applicant’s ref. no.: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 26 June 2025 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 12748/18/8/18/IN2537 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1765/18 (formerly RBCZ 2001535/14) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)