Major Singh v. Torture Claims Appeal Board
Read the full judgment text of HCAL 2242/2020 on BabelCite. This High Court CFI judgment was delivered on 16 September 2025.
1. The Applicant is a 59-year-old national of India who last arrived in Hong Kong on 2 November 2004 as a visitor with permission to remain as such up to 9 November 2004 when he did not depart and instead overstayed, and was arrested by police some 2 ½ years later on 15 June 2007. 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 certain local supporters of the political part
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HCAL 2242/2020 [2025] HKCFI 4118 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2242 OF 2020
Application for Leave to Apply for Judicial Review Following:
Order by Deputy High Court Judge Bruno Chan:
Observations for the Applicant: 1.The Applicant is a 59-year-old national of India who last arrived in Hong Kong on 2 November 2004 as a visitor with permission to remain as such up to 9 November 2004 when he did not depart and instead overstayed, and was arrested by police some 2 ½ years later on 15 June 2007. 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 certain local supporters of the political party India National Congress (“INC”) as he supported their rival Shiromani Akali Dal (“SAD”), and after his torture claim was rejected, he then sought non-refoulement protection on the same basis. He was subsequently released on recognizance pending the determination of his claim. 2.The Applicant was born and raised in Jalalabad East, Zira Tehsil, District Moga, Punjab, India. After leaving school he worked as a farmer, got married and raised a family with 3 children in his home district, and supported SAD regularly attended their local meetings and activities without holding any official post in the party. 3.In 2003 the local SAD supporters obtained permission from the village council to build a temple for their worship, but which was opposed by the local INC supporters which led to numerous conflicts between the 2 rival groups, and on one occasion in July 2003 the Applicant together with several SAD supporters were attacked by a group of INC supporters with wooden sticks that the Applicant collapsed and lost consciousness, and was subsequently forcibly abducted by his assailants to a secret place where he was beaten for 2 days during which he was threatened to plead with his own party leaders to withdraw their plan to build the temple before he was subsequently released. 4.Shortly thereafter the same group of INC supporters came to the Applicant’s home to again attack him and his family with wooden sticks that the Applicant suffered injuries that required medical treatments. 5.After these attacks the Applicant became fearful for his life and fled with his family from their home into hiding, and on 21 September 2004 he departed India for Hong Kong before travelling to the Mainland and returned to Hong Kong again on 2 November 2004 when he subsequently overstayed, and upon his arrest by the police some 2 ½ years later 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 12 February 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”). 6.By a Notice of Decision dated 24 May 2016 and a Notice of Further Decision dated 2 February 2017 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”). 7.In his decisions the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from those local INC supporters 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 or any political reason to specifically target him for harm, 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 Delhi where it would be difficult if not impossible for anyone to locate him. 8.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decisions, and for which he attended an oral hearing on 10 February 2017 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 30 June 2017 his appeal was dismissed by the Board which also confirmed the Director’s decision. 9.In its decision[1] the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted his claim of fear of harm from certain local INC supporters that caused him to leave his country to come to Hong Kong to seek protection, that his credibility was further undermined by his failure to raise his claim upon first arriving in Hong Kong until some 2 ½ years later and only after his arrest, that in any event even if his account of events prior to his departure of India were true that in the absence of 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 for him to move safely to other parts of the country away from his home district without any risk of being located by anyone that his claim for non‑refoulement protection failed on all applicable grounds. 10.On 10 November 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 stated that he does not agree with the decision 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 Order 53 rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made. 12.As the last day of the three-month period for him to file his Form 86 fell on 30 September 2017, the Applicant was therefore more than 3 years 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, a delay of more than 3 years must be considered as extremely substantial and inordinate, 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 30 June 2017 to his then reported address without being returned through undelivered post, I am unable to see any good or valid reason for his such serious delay. 14.As for the merits, if any, of his intended application, as noted above that 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 also 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 serious delay, I refuse to extend time and accordingly dismiss his leave application. Dated the 16th 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 |
Cases cited in this judgment