Sandeep Singh v. Torture Claims Appeal Board

HCAL 1617/2020

[2025] HKCFI 3952

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1617 OF 2020

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:

1.  Extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 27 April 2020 be refused; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.The Applicant is a 33-year-old national of India who arrived in Hong Kong on

2.The Applicant was born and raised in Village Brar, Tehsil Ajnala, District Amritsar, Punjab, India. After leaving school he farmed on the farmland owned by father in his home village.

3.In 2008 his neighbor and distant relative Ajit tried to take possession of his father’s farmland, and one day in August 2008 Ajit and his men came onto the farmland to forcibly occupy it, and when the Applicant tried to confront them, he was beaten severely by Ajit and his men, and before he left Ajit warned the Applicant that next time he would kill him if he tried to interfere again, whereupon the Applicant was taken by his friend to the hospital for medical treatment.

4.Upon his discharge form the hospital the Applicant was informed by his friend that his father had been killed by Ajit, and when he confronted Ajit, he was beaten again and was threatened by Ajit that next time he would be killed like his father.  

5.As a result the Applicant became fearful for his life and fled to Amritsar City to take shelter in a friend’s place, and on 21 April 2009 he departed India for Hong Kong where he subsequently overstayed, and upon his arrest by the police he raised his torture claim, and after it was rejected he then sought non-refoulement protection, for which he completed a Supplementary Claim Form (“SCF”) on 10 October 2018 with legal representation from the Duty Lawyer Service (“DLS”) but failed to attend any screening interviews before an immigration officer due to alleged medical reasons.             

6.By a Notice of Decision dated 31 October 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

7.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 neighbor Ajit and followers 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 his neighbor who is also a distant relative to seriously harm or kill him other than to deter him from interfering with his actions, that in any event it was a private land dispute between him and Ajit 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 1.2 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 Delhi or Mumbai where it would be difficult if not impossible for anyone to locate him.

8.On 12 November 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but for which he again failed to attend the scheduled oral hearing on 15 January 2020 before the Board without any explanation or response to the subsequent enquiry from the Board for his absence, nor did he make any request for another hearing for his appeal that the Board proceeded to deal with his appeal in his absence and based on the materials and information provided earlier by him to the Director and were available in the hearing bundle before the Board. On

9.In its decision[1] the Board found material inconsistencies and discrepancies in the Applicant’s claim in the absence of any evidence or answers from the Applicant to explain or clarify those issues raised by the Board that the Board doubted the credibility of his claim of fear of harm from his neighbor Ajit that caused him to leave the country to come to Hong Kong to seek protection, that even if his account of events prior to his departure of India were true that there was no reliable evidence of any real intention of Ajit to seriously harm or kill him, and that in any event it was a private land dispute between him and Ajit only without any official involvement that state or police protection would be available to the Applicant upon his return to India as well as reasonable internal relocation alternatives for him to move safely to other parts of the country away from his home district without any risk of being located by Ajit that his claim for non-refoulement protection failed on all applicable grounds.    

10.On 6 August 2020 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 his supporting affirmation of the same date in which he just repeated his claim as before but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application.    

11.By then the Applicant was also out of time with his application, as

12.As the last day of the three-month period for him to file his Form 86 fell on 27 July 2020, the Applicant was therefore some 10 days late with his application, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

13.In the Applicant’s case, while a delay of 10 days may not be considered as substantial or inordinate, but for which he did not provide any explanation or reasons in his Form or affirmation, and as the record shows that the decision was sent on the same day of 27 April 2020 to his then reported address without being returned through undelivered post, I am unable to see any good or valid reason for his albeit insubstantial delay.      

14.As for the merits, if any, of his intended application, as noted above the Applicant has also failed to put forward any proper ground for his intended challenge, 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 merits in his intended application either.

15.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.

16.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 even 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.                

17.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 their consideration and assessment of the Applicant’s claim.

18.For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his delay, I refuse to extend time and accordingly dismiss his leave application.

Dated the 8^th day of September 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