Harjeet Singh v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
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HCAL 578/2022 [2026] HKCFI 5037 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 578 of 2022 BETWEEN
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 To: Leave to apply for Judicial Review be refused. Observations for the Applicant: Introduction 1.This is the Applicant’s application by Form 86 filed on 6 July 2022 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 27 June 2022 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 29 April 2021 (the “Notice”), refusing his application for non-refoulement protection. 2.The Applicant is an Indian national, now aged 29. He departed India for Guangzhou on 26 May 2019 and then sneaked into Hong Kong in November 2019. He was arrested by the police on 2 August 2020. Then, he raised a non-refoulement claim by written signification on 5 August 2020. 3.In due course, his claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. His application was rejected by the Director’s Notice. His appeal was dismissed by the Board’s Decision. He now applies for leave to apply for judicial review of that Decision. The Applicant’s case 4.The factual background leading to the present application, the basis of the Applicant’s claim, the arguments he advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision. These will not be repeated here. The hyperlink to the Board’s Decision is included below[5] for reference. In gist, the Applicant’s case is as follows. In around 2015 or 2016, he and his girlfriend (the “girlfriend”) from a higher caste and superior community fell in love with each other. His girlfriend’s family disapproved of their relationship. In around 2017 or 2018, his girlfriend’s brother (the “brother”) and a group of men beat the Applicant as he was coming out from a cinema with his girlfriend (the “first incident”). Two months later, when the Applicant was meeting his girlfriend, the girlfriend’s father (the “father”) and a group of men appeared. They assaulted the Applicant until some passers-by intervened (the “second incident”). Nevertheless, the Applicant and his girlfriend continued their romantic relationship. One day, the father and brother turned up in the Applicant’s home and threatened him at gun point. The father threatened to kill the Applicant if he did not cease to see his girlfriend (the “third incident”). Regardless of the threat, the Applicant and his girlfriend eloped to Chandigarh. After about four months, the father and brother turned up in their residence. They punched the Applicant, pointed a gun at him and said their eloping had brought great shame and disrepute to their family. They gave him an ultimatum threatening to kill him if he did not leave his girlfriend (the “fourth incident”). Then they took his girlfriend away. The Applicant remained in Chandigarh. A few days later, the girlfriend called the Applicant told him that her father had arranged a marriage for her. Then the two of them eloped to Delhi. The girlfriend’s father and brother went to the Applicant’s home and complained to his family about the shame their eloping had brought to their family and threatened to kill the Applicant if he was found in India (the “fifth incident”). 5.Out of fear for his safety, the Applicant’s parents informed him of the fifth incident and advised him to leave India. In May 2019, the Applicant left his girlfriend and flew to Guangzhou. From there he sneaked into Hong Kong in November 2019. 6.The Applicant does not consider relocation within India viable because the father and brother had located them previously and would be able to find him if he returned to India. He did not report the threat to the police because the Indian police are corrupt and the father and brother are rich and well connected to the Congress Party in Punjab. He feared that the police would inform them if he made a report. The finding of the Board 7.Despite the lack of documentary proof, the Board seemingly accepted the Applicant’s evidence and assessed his claim on the basis of the case as he asserted, the country of origin information (the “COI”) and some inferences drawn therefrom. The Board noted the five incidents. Despite the threat of death, it found what the Applicant experienced were much less severe. He was only assaulted during the first, second and fourth incidents. But he did not find it necessary to see a doctor. He recovered by treating himself with medicine and ointment from a pharmacy. The Board found the extent of his injuries he suffered were limited and did not attain a minimum level of severity. 8.The Board noted that the Applicant had an uneventful stay in Delhi and that the father and brother never harmed his family. It noted also that the Applicant had no difficulty in obtaining his visa or passing the border. This is so despite the Applicant’s claim that the father and brother have powerful political connections and had made repeated death threats against him. 9.The Board therefore found the alleged ill-treatment on the Applicant, considered individually and cumulatively, has not reached the minimum level of severity and that the Applicant had failed to show he would face a genuine and substantial risk of being subjected to such mistreatment on his return to India. Accordingly, it found his fear of being harmed or killed, if refouled, was not well-founded. 10.The Board accepted the Applicant’s concerns regarding the Indian police are not baseless. However, it found from objective COI that the Indian government is serious in combating corruption and tackling police misconducts. The community’s sentiment against corruption has also enhanced implementation of the government’s anti-corruption efforts. On a balanced view of the COI, the Board is satisfied that adequate state protection would be available to the Applicant should he be refouled back to India. 11.Despite the Applicant’s dispute with the father and brother involved the class system of caste, the Board considered the direct cause of the incidents was the relationship between the Applicant and his girlfriend. It therefore found the dispute is a civil or private dispute and the alleged persecution by the father and brother was not caused by any of the reasons enumerated in the 1951 Convention relating to the status of Refugees and its 1967 Protocol. 12.Applying the law applicable to the non-refoulement protection to the above finding of fact, the Board also came to the conclusion that the Applicant is not entitled to protection under of the applicable grounds under the USM. Hence, it dismissed the Applicant’s appeal. Legal principles applicable to judicial review 13.The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[6]. Grounds for judicial review 14.At the hearing, after the above principles had been explained to the Applicant, he confirmed he had no complaints about errors of law, procedural unfairness and irrationality in the Decision. He had not advanced any grounds of application in his Form 86 or supporting affirmation. In the absence of particularised grounds, the Court could only focus on errors of law, procedural unfairness or irrationality in its overall scrutiny of the Board’s Decision. Conclusion 15.Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board accepted the Applicant’s evidence and assessed his claim on the basis of the case as he asserted. It was on that basis that the Board found the alleged ill-treatment inflicted on the Applicant did not attain the minimum level of severity, that the Applicant had failed to show he would face a genuine and substantial risk of being subjected to such mistreatment on his return to India, and that his fear of being harmed or killed when refouled to India is not well-founded. Applying the law applicable to non-refoulement protection to the above finding of fact, the Board came to the conclusion that the Applicant is not entitled to non-refoulement protection under any of the four applicable grounds under the USM. These are mixed finding of facts and of the law. Insofar as these are finding of the law, they are absolutely correct. Insofar as these are finding of fact, they are exclusively within the province of the Board, which the Court on a judicial review will not interfere, save when such finding involved error of law, procedural unfairness and irrationality. The Court could detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge his burden of proving his fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success. 16.For the above reasons, the Applicant’s leave application is refused. Dated the 4th day of September 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 [1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”) [3] Risk of persecution by reference to the non-refoulement principle under Article 23 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol [4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 [5] https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2022/HCAL000578_2022_files/the_Board's_Decision.pdf [6] [2018] HKCA 524 at [14(1)] |
Cases cited in this judgment