Case Document

100%

HCAL 7/2021

[2025] HKCFI 5078

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 7 OF 2021

BETWEEN
	Gurpreet 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;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.The Applicant is a 40-year-old national of India who entered Hong Kong illegally on 5 June 2016 and surrendered to the Immigration Department on 10 June 2016 when 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 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 and raised in Village Chander Bhan, Gurdsapur, Pinjab, India. After leaving school he worked as a machine operator, married his wife and raised a family with a daughter in his home district.

3.His grandfather who used to own 5 pieces of farmlands in his home village had distributed 4 of them to his children including the Applicant’s father and uncle, retaining only one piece for himself.

4.In 2011 his grandfather transferred the remaining farmland to the Applicant, of which his uncle was displeased and repeatedly demanded the Applicant to hand over the land to him, and when the Applicant refused, it led to constant conflicts between them.

5.One day in February 2015 his uncle and his son again demanded the Applicant to transfer the farmland to him, and when the Applicant who was with 2 friends again refused, it led to a fight between them during which his uncle and son attacked the Applicant and his friends with sharp weapons that led to juries sustained by both his uncle’s son and one of the Applicant’s friends.

6.After the incident his uncle swore to kill him in revenge that the Applicant became fearful for his life and fled to Amritsar in March 2015, and in late May 2015 he departed India for China, and from there he later sneaked into Hong Kong and subsequently surrendered to the Immigration Department and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 12 March 2018 and attended screening interview before the Immigration Department with legal representation.

7.By a Notice of Decision dated 19 April 2018 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 assessed the level of risk of harm from his uncle upon his return to India as low due to the low intensity and frequency of past ill-treatment from him, that there is no evidence of his uncle any real intention of to seriously harm or kill him other than to press him to give up his farmland to him, that in any event it was a private land dispute between the 2 of 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 adult with working experience to move to other areas of the country away from his home district in large cities such as Mumbai where it would be difficult if not impossible for his uncle to locate him.

9.On 2 May 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 11 November 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 23 December 2020, his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.In its decision[1], the Board accepted the Applicant’s claim of threats from his uncle over their land dispute but found no reliable evidence of any real intention of his uncle to seriously harm or kill him other than to press him to yield to his demand, and that in any event it was a private land dispute between the 2 of them only without any official involvement that state or police protection would be available to the Applicant upon his return to India if resorted to as well as reasonable internal relocation alternatives for him to move safely to other parts of the country away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.

11.On 4 January 2021, 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 in his supporting affirmation of the same date in which he just asserted that he is not satisfied with the decision as his life is still in danger in his home country as claimed before but without putting forth any proper ground for his intended challenge, nor was he able to do so at the hearing of his application. 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 reasonably arguable basis for his intended challenge of the Board’s decision.

12.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.

13.In the Applicant’s case, the fact is that it has 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.

14.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.

15.For all these reasons, I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss his application.

Dated the 28^th day of October 2025

(Chung Lai Fan, Christine)
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 28 October 2025 Gurpreet 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 28 October 2025 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 11432/18/5/17/IN2238 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 968/18 (formerly RBCZ/12690/16) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)