Satwinder Singh v. Torture Claims Appeal Board

HCAL 2011/2020

[2026] HKCFI 353

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2011 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 Bruno Chan:

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.The Applicant is a 30-year-old national of India who entered Hong Kong illegally on 1 July 2015 and surrendered to the Immigration Department on 14 July 2015 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 wife’s family who disapproved of their marriage for religious reason. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Punjab, India, and in 2012 he met his wife and started dating each other notwithstanding their different religions as he was a Sikh while she was a Christian and that both their families did not approve of their relationship for the same reason.

3.After having been threatened and attacked by his wife’s family on several occasions, the Applicant and his wife in March 2015 secretly went to Chandigarh and got married in a church, but shortly thereafter they were confronted by her brother and friends who proceeded to beat the Applicant, but when her brother tried to get his pistol to shoot him, the Applicant managed to flee from the scene and ran home.

4.As a result, the Applicant became fearful for his life, and so shortly thereafter in May 2015 he departed India for China, and from there he later sneaked into Hong Kong and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 20 November 2018 and attended screening interview before the Immigration Department with legal representation.             

5.By a Notice of Decision dated 12 December 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 wife’s family 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 wife’s family to seriously harm or kill him other than to force him to end his relationship with his wife, that in any event it was a private dispute between him and his wife’s 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 young adult to move to other areas of the country away from his home district in large cities such as Delhi or Mumbai where it would be difficult if not impossible for his wife’s family to locate him.

7.On 20 December 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 15 November 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 29 September 2020 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision[1], the Board found material inconsistencies discrepancies and implausibility in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from his wife’s family who disapproved of their marriage that caused him to leave his country to come to Hong Kong to seek protection when he was unable to produce any reliable proof or evidence of such marriage or to provide any details thereof, and that he conceded at the hearing that since he left the country that he never had any further contact with his alleged wife and that her family had since tried to marry her to another man that the Board rejected his claim of having married his alleged wife or that her family had threatened him that caused him to leave his country, and concluded that the Applicant had fabricated his such claims so as to create a basis upon which to apply for non-refoulement protection that it did not consider that he faces any real risk of proscribed harm upon his return to India that his claim for non-refoulement protection failed on all applicable grounds.    

9.On 7 October 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 or his supporting affirmation of the same date in which he just stated that he rejects the decision as it disregarded his dangerous situation but without providing any necessary or relevant details or particulars or elaboration as to how it did so, nor was he able to do so or put forward any proper ground for his intended challenge 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 v Director of Immigration [2018] HKCA 524.

11.In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, 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 finding of the Board.

12.Furthermore, the fact is that it has also 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 also 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.                

13.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.

14.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 15^th day of January 2026

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