Tajinder Singh v. Torture Claims Appeal Board
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HCAL 12/2020 [2025] HKCFI 3818 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 12 OF 2020
Application for Leave to Apply for Judicial Review Following:
Order by Hon S T Poon J: The application for leave to apply for judicial review be dismissed. Observations for the Applicant: 1.The Applicant is a 34-year-old national of India who arrived in Hong Kong on 1 June 2014 as a visitor with permission to remain as such up to 15 June2014 when he did not depart and instead overstayed and was arrested by police on 18 June 2014. After he was referred to the Immigration Department for investigation, he raised non-refoulement claim for protection on the basis that if he returned to India he would be harmed or killed by his paternal uncle and cousins over their land dispute in their home village. He was subsequently released on recognizance pending the determination of his claim. 2.The Applicant was born and raised in Deara Sant Garh Gudawara, Swaran Park, Jalandhar, Punjab, India where his father jointly owned a piece of farmland with his paternal uncle inherited from his grandfather in the home village, and on which the Applicant used to assist his father in his farming. 3.In August 2013, the Applicant’s father made a will to bequeath his farmland to the Applicant and his elder brother equally. His paternal uncle however coveted his father’s share of the land and demanded a bigger part of the farmland. 4.In October 2013 and February 2014, his uncle and his cousins who were members of a local gang started to harass and intimidate the Applicant to give up his share of his father’s land with death threats and attacked him on a few occasions with bare hands and wooden sticks and as a result the Applicant suffered cuts and bruises all over his body. 5.The Applicant became fearful for his safety, and on his family’s advice he relocated and stayed at his sister’s place in Village Mukandpur, and subsequently in May 2014 departed Pakistan for China, and from there he later entered into Hong Kong as a visitor where he subsequently overstayed, 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 14 September 2018 and attended screening interview before the Immigration Department with legal representation. 6.By a Notice of Decision dated 9 October 2018 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”). 7.In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real or substantial risk of harm from his uncle and cousins upon his return to India 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 press him to give up his share of his father’s land to them, that in any event it was a private land dispute between them within the 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 1.4 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 or Mumbai where it would be difficult if not impossible for his uncle or cousins to locate him. 8.On 18 October 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 21 October 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 24 December 2019, his appeal was dismissed by the Board which also confirmed the Director’s decision. 9.In its decision the Board found that the Applicant’s evidence regarding his claims did not make sense as even in the Applicant’s own admission he did not in fact have ownership of his share of land and he was not able to explain why his uncle and cousins only targeted him instead of both him and his elder brother for the land. The Board found that in any event it was a private land dispute between them without any official involvement and that state or police protection as well as reasonable internal relocation alternatives are available for him to move safely to other parts of the country away from his home district without any risk of being located by his uncles and cousins. His claim for non-refoulement protection failed on all applicable grounds. 10.On 6 January 2020 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 stated the following and did not give further details or elaborations at the scheduled hearing:
11.For his complaint of not being provided with legal representation in his appeal before the Board, the Court of Appeal has already held 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 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37, and Re Zafar Muazam [2018] HKCA 176. 12.The Applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify and make representation in his appeal hearing in English without an interpreter before the Board and to answer questions put to him by the Adjudicator without difficulty. As such I do not find anything amiss arising from the lack of legal representation in his appeal process, and I do not find this ground reasonably arguable for his intended challenge. 13.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. 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. 14.In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in his claim if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526. 15.In the premises, and 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 the Director’s consideration and assessment of the Applicant’s non-refoulement claim or in the Board’s decision allowing the Applicant to withdraw his appeal. 16.For all these reasons I am 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 29th day of August 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
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