Sakatter Singh v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1235/2020

[2025] HKCFI 4715

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1235 of 2020

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

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 applies for leave to apply for judicial review of the Decision dated 18 May 2020 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing the appeal against the Director’s Decision as described below.

2.The applicant asked for a hearing. However, he was absent at the hearing on 10 September 2025. I shall deal with his application on the papers.

3.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

4.The applicant is a national of India. He is an illegal immigrant, having entered Hong Kong as a visitor, but overstayed since 19 December 2015. He surrendered to the Immigration Department and lodged a non-refoulement claim with the Director of Immigration (“the Director”) on the basis that, if refouled, he will be harmed or killed by (i) his uncle over a land dispute; and (ii) by his girlfriend’s father, who disapproved of their relationship. He also feared that he will be arrested by police because police had framed him to be a murderer of a politician from the Akalidal Party.

5.Details of his claim are set out in the Board’s Decision. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001235_2020_files/the_Board's_Decision.pdf.

The Director’s Decision

6.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”).

7.By way of Notice of Decision dated 12 December 2017   (“the Director’s Decision”), the Director dismissed the applicant’s claim because it was unsubstantiated. Besides, state protection is available and internal relocation is viable, which will mitigate or neutralize the applicable risks.

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 9 November 2018, the Board conducted an oral hearing for his appeal. He had given oral evidence and answered the Board’s questions.

9.Having considered the evidence, the Board found the facts below.

(1)  Much of the applicant’s evidence related to events, which he did not witness himself, but was based on what he was told by others. [49]

(2)  His evidence was very vague and generalized. When questioned on the facts, he said he had forgotten. [53]

(3)  His evidence was not a truthful account of the events in India. [56]

(4)  He had invented almost all of his evidence in the hope of advancing his application for non-refoulement protection.

10.For the reasons above, the Board dismissed his appeal and affirmed the Director’s Decision.

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

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

12.In his affirmation in support of his application, the applicant said the Board made error in its decision. He cannot relocate. The Indian government will discriminate him and oppress him because he is a Sikh and a Muslim.

DISCUSSION

13.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).

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

15.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.”

16.The grounds under paragraph 12 are only the applicant’s bare assertion without any evidence in support. They are not valid to challenge the Board’s Decision.[1]

17.The applicant has raised no valid ground to challenge the Board’s findings.

18.It seems that the Board had committed an error in law by telling the applicant that he was not obliged to give evidence to answer questions. This is inconsistent with section 37ZA(1) (a) of the Ordinance, which requires the applicant to provide the Board with all information relevant to his claim and make prompt and full disclosure of all material facts in support of the claim, including any document supporting the facts. If the applicant elected not to give evidence and the Board did not believe his evidence, the Board may be held to have misled the applicant. See 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, paragraph 47.

19.However, the applicant had given evidence and answered the Board’s question and the Board found the facts above based upon his evidence.  I find that such error in law has no bearing on the Board’s Decision.

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

DISPOSITION

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

Dated the 15^th day of October 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