Jaspal Singh v. Torture Claims Appeal Board

HCAL 580/2023

[2025] HKCFI 6173

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 580 OF 2023

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 39-year-old national of India who arrived in Hong Kong on 5 July 2018 as a visitor with permission to remain as such up to 19 July 2018 when he did not depart and instead overstayed, and almost 3 years later on 24 May 2021 he surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if he returned to India he would be harmed or killed by his brother over their land dispute. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Ludhiana, India. After leaving school he worked as a farmer on his father’s farmland in his home village before going to Abu Dhabi in 2010 to work as a plumber so that he could remit money to his brother in India for the purchase of some land for him in his home village for his future home, during which his brother also asked his father to transfer his father’s farmland to his brother.

3.In early 2018 the Applicant returned to his home village in India and asked his brother to transfer his land back to him as well as his share of his father’s farmland, but his brother refused and instead attacked him and made death threats against him.

4.As a result the Applicant became fearful for his life and fled to a neighboring village in Kularh, and on 5 July 2018 he departed India for Hong Kong where he overstayed and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 2 November 2021 and attended screening interview before the Immigration Department with legal representation.

5.By a Notice of Decision dated 18 March 2022 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 found no substantial grounds for believing that there will be any real and substantial risk of him being harmed or killed by his brother upon his return to India due to the low intensity and frequency of past ill-treatment from his brother, that there is no evidence of any real intention of his brother to seriously harm or kill him other than angry words and empty threats, that in any event it was a private land dispute between just the 2 of them within the family 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 1.3 billion people spread across a vast territory of more than 3 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 Hyderabad or Kolkata where it would be difficult if not impossible for his brother to locate him.

7.On 23 March 2022 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 17 February 2023 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 20 March 2023 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 fear of harm from his brother over their land dispute but found no reliable evidence of any real intention of his brother to seriously harm or kill him over their dispute, and that in any event it was a private land dispute between just the 2 of 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 brother that his claim for non-refoulement protection failed on all applicable grounds.

9.On 17 April 2023 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)  That the Adjudicator did not consider his claim properly and rejected it without even taking time to think about his life;

(2)  That the Adjudicator unreasonably refused to allow him to submit documents without translations and refused to give him time to do so;

(3)  That the interpreter was impatient and unhelpful to him during the hearing.

10.These are however just some bare and vague assertions of the Applicant 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 how did the Adjudicator fail to properly consider his claim or his situations, or what documents that he had intended to submit but which was refused by the Adjudicator without translations, or in what way was the interpreter impatient or unhelpful to him during his appeal hearing. 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.

11.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.

12.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 v Jenkins & Anor [2013] 1 HKC 526.

13.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.

14.Moreover, the Applicant recently in writing requested to withdraw his application as his issue in his home country has been resolved that he now wants to return to India.

15.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 of no more issues for him to return to his home country, I accordingly dismiss his leave application.

Dated the 17^th day of December 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