Case Document

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HCAL 1018/2022

[2025] HKFI 4602

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNO 1018 OF 2022

BETWEEN
	Gurlal Singh	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 29-year-old national of India who entered Hong Kong illegally in August 2018 and was arrested by police almost 1 year later on 3 July 2019. After he was referred to the Immigration Department for investigation, he raised a 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 cousin over their land dispute in his home village. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born in Hanumangarh, Rajasthan, India and raised in Village Kalanwali, District Sirsa of Haryana where his father and his paternal uncle had inherited his grandfather’s land in equal share, but in 2015 when his uncle learnt of his father’s plan to transfer his land to the Applicant, his uncle demanded for a share of the land for his son as well, and when his father refused, his uncle was very upset, and soon the Applicant started to receive threatening calls from his uncle and cousin that they would kill him if his father failed to transfer some of his land to them.

3.As a result the Applicant became fearful for his safety and in February 2016 he departed India for Hong Kong, but was refused entry by the Hong Kong Immigration Department and was returned to his home village in India.

4.However, one day in May 2016 while on his way to the city, the Applicant was attacked by his cousin and 2 unknown men with wooden sticks that he suffered cuts and bruises all over his body, whereupon he was advised by his father to leave his home village to take shelter in his maternal grandparents’ place in Gidderbaha before moving on to Mumbai, and on 28 June 2016 he again departed India for Hong Kong when he was again refused entry and was subsequently returned to India.

5.Upon returning to the country the Applicant was still afraid to return to his home village and instead stayed in Mumbai, but one day in late 2016 while on the street he was attacked by some unknown men who punched and kicked him until they were restrained by passersby.

6.Thereafter the Applicant suspected that his uncle was able to locate him in Mumbai and therefore sent those men to attack him, he therefore felt that it was no longer safe to remain in India, and so on 15 January 2017 he again departed for China, and from there he later sneaked into Hong Kong, and upon his subsequent arrest by the police almost 1 year later he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 15 August 2019 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.By a Notice of Decision dated 26 September 2019 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”).

8.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 risk of him being harmed or killed by his uncle or cousin 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 to seriously harm or kill him other than to press him to give up some of his father’s land to them, that in any event it was a private land dispute between them 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 young 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.

9.On 8 October 2019 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 19 May 2022 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 14 September 2022, his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.In its decision[1] the Board found material inconsistencies discrepancies and contradictions in the Applicant’s evidence that it doubted and rejected the credibility of his claim of fear of harm from his uncle or cousin over any land dispute between them in his home village 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 almost 1 year later and only after his arrest by the police that the Board concluded that the Applicant had manufactured the entirety of his claim that there was no evidence or basis to suggest that he would face any real risk of being harmed or killed by his uncle or cousin as alleged or of any proscribed harm of any sort upon his return to India that his claim for non-refoulement protection failed on all applicable grounds.

11.On 28 September 2022 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 put forward the following grounds for his intended challenge:

(1) Procedural impropriety in the Board’s decision as the Applicant’s problem in his home country is purely political that he would be killed upon refoulement to India;

(2) Procedural impropriety in the Board’s failure to consider the COI that the Applicant’s enemies will be able to find and kill him no matter where he relocate in his home country;

(3) Procedural impropriety in the Board’s failure to consider the Applicant’s fear that he would face real risk and difficulties in his home country upon refoulement;

(4) Error/misdirection in law in the Board’s failure to consider the facts raised in the Applicant’s claim.

12.These are however all just some bare and vague assertions of the Applicant containing a few key words or phrases but without any necessary or relevant particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or what evidence is there in the Applicant’s claim of any political element when on the factual basis of even his own case that it was a private land dispute between him and his uncle only without any official involvement or political element at all. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them 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 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 vDirector of Immigration [2018] HKCA 524.

14.In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 54 – 64 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law 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 to challenge the finding of the Board.

15.Furthermore, the fact is that it has also been 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 vJenkins & Anor [2013] 1 HKC 526.

16.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.

17.Moreover, the Applicant recently on 4 August 2025 filed an affirmation requesting to withdraw his application.

18.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, and in view of his latest confirmation to withdraw his application, I accordingly dismiss his leave application.

Dated the 10^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 10 October 2025 Gurlal 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 10 October 2025 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 16369 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 652/19 (formerly RBCZ 174/19) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)