Sukhdev Singh v. Torture Claims Appeal Board

HCAL 37/2021

[2025] HKCFI 4918

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 37 OF 2021

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 be refused; and

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

Observations for the Applicant:

1.The Applicant is a 37-year-old national of India who had previously been refused entry into Hong Kong by the Immigration Department on 5 June 2013 returned again several weeks later on 24 July 2013, and when he was again refused entry, he then 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 Indian National Congress (“INC”) as he supported their rival Shiromani Akali Dal (“SAD”), and after his torture claim was rejected, he then sough 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 Village PO Malri, Nakodar, Punjab, India. After leaving school he worked as a farmer in his home village, and supported SAD regularly attended their local meetings and activities.

3.One day in early 2012 during the local Punjab Legislative Assembly Election, while assisting the local villagers to vote, the Applicant saw some of his fellow SAD supporters being assaulted by a group of INC supporters, and when he tried to intervene, he was also attacked by those INC supporters but managed to make his escape and ran home unharmed.

4.Shortly thereafter one day while the Applicant with a friend were on their way home, they were attacked by the same group of INC supporters that the Applicant suffered cuts and bruises all over his body until their assailants were intervened by other villagers.      

5.Later when the INC’s candidate won the election, the Applicant felt that it was no longer safe for him to remain in India, and so on 23 July 2013 he departed for Hong Kong, and when he was refused entry by the Immigration Department he then raised his non-refoulement claim for protection, for which he completed a Supplementary Claim Form (“SCF”) on 11 September 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).              

6.By a Notice of Decision dated 19 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 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 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 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 the INC people to seriously harm or kill him or even to specifically target him for harm given that he was just an ordinary SAD supporter without holding any official post in the party, 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 New Delhi or Mumbai where it would be difficult if not impossible for anyone to locate him.

8.On 30 October 2018, 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 8 May 2020 but during which he both in writing and orally requested to withdraw his appeal as it was safe for him to return to his home country, and upon being satisfied that his request to withdraw his appeal was freely made, that he fully understood the consequences of the withdrawal, and that he had good reason to do so, the Board by a Decision made there and then, and also in writing dated the same day of 8 May 2020 given to him in person, allowed his request and directed that his appeal be withdrawn and dismissed, and that it also confirmed the Director’s decision as having finally determined the Applicant’s non-refoulement claim.    

9.However, some 8 months later on 11 January 2021 the Applicant filed a 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 is not satisfied with the decision as he cannot go back to his home country because his life is not safe there but without putting forth any proper ground for his intended challenge of the Board’s decision, nor did he explain why his apparent change of mind about his earlier withdrawal of his appeal to the Board.     

10.By then the Applicant was of course 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.

11.As the last day of the three-month period for him to file his Form 86 fell on 8 August 2020, the Applicant was therefore 5 months 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.

12.In the Applicant’s case, a delay of 5 months must be considered as substantial and inordinate, for which he did not provide any explanation or reasons in his Form or affirmation, nor did he request any oral hearing for his application, and as noted above that the Board’s decision was made in his presence at the hearing on 8 May 2020 and that a copy was also given to him on the same day, I am unable to see any good or valid reason for his such serious delay.      

13.As for the merits, if any, of his intended application, as also noted above that the Applicant has failed to put forward any proper ground for his intended challenge, nor did he provide any explanation for his apparent change of mind after having requested to withdraw his appeal on the basis that it was safe for him to return to his home country. As such, 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

14.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.

15.In the Applicant’s case, the Board withdrew and dismissed his appeal at his own request in person at the hearing and upon being satisfied that his request was freely made, that he fully understood the consequences of the withdrawal, and that he had good reason to do so, and as held by the Court of Appeal in Re Das Purnima Rani, CACV 85/2019 [2019] HKCA 669, once the Board has dismissed an appeal against the Director’s refusal of a non-refoulement claim upon a valid withdrawal or abandonment of the appeal by a claimant in the sense of being the result of a deliberate and informed decision, the appeal is no longer extant and the Board becomes functus officio with no jurisdiction to take any step regarding the appeal, as stipulated by Section 37V(2)(b) of the Immigration Ordinance that a non-refoulement claim rejected by the Director is finally determined when the appeal against it was disposed of, as notwithstanding the lack of determination on the merits, the dismissal of an appeal on its withdrawal nevertheless disposed of the appeal, as otherwise not only would there be no finality in the determination of such claims, much room would be created for abuse by claimants desirous of delaying their removal from Hong Kong by making last minute withdrawals and then subsequently applying for reinstatement of the appeals, as appears to be the case of the Applicant. As such, 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 decision of the Board.

16.Furthermore, the fact is that it has 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 agreed and confirmed by the Board, 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 to apply high standards of fairness in the Director’s consideration and assessment of the Applicant’s non-refoulement claim or in the Board’s decision to withdraw and dismiss his appeal.

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 the absence of any good reason for his serious delay, I refuse to extend time and accordingly dismiss his leave application.

Dated the 22^nd 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