Case Document

100%Judiciary

HCAL 1232/2020

[2025] HKCFI 4268

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1232 of 2020

BETWEEN
	Baljit Singh	Applicant
	and
	Torture Claims Appeal Board/	Putative Respondent
	Non-refoulement Claims Petition Office
	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 documents only; or
	consideration of documents and oral submissions by the Applicant in open court.

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.The applicant had raised torture claim and non-refoulement claim to the Director of Immigration (“the Director”) who had made the decisions below refusing his claims:

(1) Notice of Decision dated 15 August 2014 (“the Director’s 1^st Decision”) on the torture claim; and

(2) Notice of Further Decision dated 17 January 2017 (“the Director’s 2^nd Decision”) on the non-refoulement claim.

2.The applicant appealed the Director’s Decisions to the Torture Claims Appeal Board (“the Board”), which made the decisions below:

(1) Decision dated 4 March 2016, dismissing his appeal against the Director’s 1^st Decision; and

(2) Decision dated 7 May 2020, dismissing his appeal against the Director’s 2^nd Decision.

3.The applicant applies for leave to apply for judicial review of the Board’s 2^nd Decision. He did not apply for judicial review of the Board’s 1^st Decision, which has become final in accordance with section 37 (1) & (2) of the Ordinance.

4.Since the facts of the Board’s Decisions are the same, I shall take into consideration of the Board’s 1^st Decision for this application.

5.The applicant did not ask for a hearing.

6.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

7.The applicant is a national of India. He came to Hong Kong as a visitor on 22 July 2007 and was allowed to stay until 5 August 2007. He overstayed and surrendered to the police, which referred him to the Immigration Department where he lodged a torture claim and a non-refoulement claim. The Director rejected his claims. He appealed to the Board, which dismissed his appeals as mentioned in paragraphs 1 and 2 above.

8.The applicant’s claims are based upon his allegation that, if refouled, he will be harmed or killed by his ex-wife’s family as he had a dispute with his ex-wife, Parminder, and divorced her in June 1999. Because of the divorce, Parminder moved to live in her maiden family, which caused the family to murder one of the son’s wife. As a result, those family members involved in the murder were sentenced to imprisonment.

9.Details of his claim are set out in the Board’s 1^st Decision. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001232_2020_files/the_Board's_Decision.pdf.

The Director’s Decisions

10.The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

11.By way of the Director’s Decisions, the Director dismissed the applicant’s torture claim and non-refoulement claim because they were unsubstantiated.

The Board’s Decisions

The Board’s 1^st Decision

12.The applicant appealed the Director’s 1^st Decision to the Board. According to the Board’s 1^st Decision, the Board heard the case on 17 April 2015 (in the absence of the applicant) and on 26 June 2015. There was no mention whether the applicant had given oral evidence or answered the Board’s questions. However, it is clear that the Board had considered the main issues of the applicant’s non-refoulement claim.

13.Having considered the evidence, the Board made the findings below.

(1)   The Board accepted that the marriage with his ex-wife was no longer in existence. [8]

(2)   There was no ground to support his suspicion that he was attacked by some people in Hong Kong at the instigation of Parminder’s family. [10]

(3)   His allegation that the attempted kidnapping of him in India was instigated by Parminder’s family was only his speculation without evidence in support. [10] Furthermore, there was no motive for Parminder’s family to do so. [11]

(4)   Because of the reasons above, the future risk that Parminder’s family will harm or kill him if he returns to India is very low. [14]

(5)   The alternative of internal relocation is viable. [15]

14.For the reasons above, the Board dismissed the applicant’s appeal and confirmed the Director’s 1^st Decision.

The Board’s 2^nd Decision

15.The applicant appealed against the Director’s 2^nd Decision to the Board. The Board decided not to hold an oral hearing for its disposal.

16.Having considered the evidence before it, the Board found that the applicant had provided no additional materials in support of his BOR 2 risk claim, it found that the applicant failed to establish a case under BOR 2 risk and dismissed his appeal.

Application for leave to apply for judicial review of the Board’s Decision

17.The applicant has filed Form 86 dated 19 June 2020 for leave to apply for judicial review of the Board’s Decision.

18.In his affirmation in support of his application, the applicant did not raise any specific ground to challenge the Board’s 2^nd Decision.

DISCUSSION

19.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

20.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

21.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

22.The applicant has raised no valid ground to challenge the Board’s findings in the Board’s 1^st Decision or the Board’s 2^nd Decision.

23.As the applicant has not challenged the Board’s 1^st Decision, which found against him on the BOR 3 risk, he will not have any arguable case against the Board on BOR 2 risk as the Court of Appeal in in Kulwinder Kaur v Director of Immigration and Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2022] HKCA 48, Hon Chu, JA (as she then was), Barma JA and Au JA ,7 January 2022, held:

“59. … upon determining that there is no BOR 3 risk, there is no arguable ground for any BOR 2 risk: see AA v Sweden (2017) 64 EHRR 20 at [52] and [96]; RM v Gerard Paul Muttrie Esq (unrep., HCAL 166/2015, 3 March 2016) at [52].”

24.The applicant has sent in some documents showing that he is now receiving assistance from The International Social Service Hong Kong and a statement to the police that he was attacked by other Indian people on 3 August 2013. Having considered these documents, I find that they will not advance his application.

25.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s 2^nd Decision.

DISPOSITION

26.I refuse to grant leave to the applicant to apply for judicial review of the Board’s 2^nd Decision. Accordingly, I dismiss his application.

Dated the 8^th day of October 2025

(Klein Tse)
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 8/10/2025 Baljit Singh 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 8/10/2025 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 169/14/8/84/IN53; BOR 81/17/1/58/IN18 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 443/08 pt.2 (formerly RBCZ 147/08 Pt.2); RBCZ/9001233/16 (formerly RBCZ/147/08) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)