Jagmail Singh v. Torture Claims Appeal Board

HCAL 1898/2020

[2025] HKCFI 5813

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNO 1898 OF 2020

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 50-year-old national of India who last arrived in Hong Kong on 5 August 2016 as a visitor with permission to remain as such up to 19 August 2016 when he did not depart and instead overstayed, and was arrested by police on 22 August 2016.  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 uncles over their property dispute in his home district.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Tarn Taran, Punjab, India. After leaving school he worked as a farmer, got married and raised a family with a daughter in his home district.

3.Upon the passing of his grandfather in 1992, the Applicant together with other members of the family inherited their shares of his grandfather’s estate under his will, but of which his paternal uncles in 1998 started to raise issues over the Applicant’s entitlement, and demanded compensations from him if he wanted to keep his share of his grandfather’s estate which led to conflicts and confrontations between them, and after one occasion when he was beaten by his uncles and their followers, the Applicant fled from his home for Amritsar to take shelter in his father-in-law’s place, and on 28 February 2016 he departed India for Hong Kong, but upon learning that his uncles were prepared to discuss settlement with him, the Applicant therefore returned to India to meet with his uncles.     

4.However, their settlement attempt was not successful, and as the threats from his uncles resumed, the Applicant again left India on 4 August 2016 for Hong Kong where he subsequently overstayed, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 2 March 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

5.By a Notice of Decision dated 27 March 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”).

6.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 uncles 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 his uncles to seriously harm or kill him other than to extort money from him, that in any event it was a private property dispute between them within their family 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 Delhi where it would be difficult if not impossible for his uncles to locate him.

7.On 9 April 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 13 August 2020, his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision[1], the Board accepted the Applicant’s claim of property disputes with his paternal uncles but found no reliable evidence of any real intention of his uncles to seriously harm or kill him, and that in any event it was a private property dispute between them within their family only without any official involvement that state or police protection would be available to the Applicant upon his return to India 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 by his uncles that his claim for non-refoulement protection failed on all applicable grounds.    

9.On 22 September 2020, 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, and in his supporting affirmation of the same date he just put forward various bare and vague assertions of not getting legal or language assistance for his appeal or that the Board was biased against him by dismissing his claim without reasons but without providing any relevant or necessary details or particulars or elaboration as to how it was so, 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.

10.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.

11.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 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 vJenkins & Anor [2013] 1 HKC 526.                

12.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.

13.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 November 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