Harpreet Singh v. Torture Claims Appeal Board
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HCAL 1063/2023 [2026] HKCFI 5422 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1063 OF 2023 BETWEEN
Application for leave to apply for judicial review NOTIFICATION of the Judge’s decision (Order 53, rule 3) Following:
Order by Deputy High Court Judge Michael WONG:
Observations for the applicant: The Leave Application 1.By way of Form 86 dated and filed on 30 June 2023, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 23 June 2023 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:- 2.The Board found that the applicant was unable to make out his claims for non-refoulement protection in Hong Kong on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Thus, the Board rejected his appeal/petition against the decision of the Director of Immigration (“the Director”) dated 19 October 2022 (“the Director’s Decision”) and confirmed the same, which rejected the applicant’s claim for non-refoulement protection. Amendments 3.The applicant named the Board and the Director as the putative respondents and the Board as the putative interested party in Form 86. 4.In fact, the Board should only be named as the putative respondent, and the Director should be named as the putative interested party. 5.Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and the name of the putative interested party to “Director of Immigration”. The applicant’s case 6.It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above. 7.In sum, the applicant initially claimed in his written representation for non-refoulement protection because if refouled to India, he would be harmed or killed by his neighbour, Jaswant Singh (“JS”), in relation to a land dispute in his home area. 8.In the applicant’s Non-refoulement Claim Form, the applicant claimed that he lived in fear of not only JS but also the Punjab police, including of being imprisoned, tortured or killed by them as a result of false information given to them by JS. 9.However, by the time of the Board’s hearing, the applicant reverted to his case that was set out in his written representation in that his sole fear of returning to India was that he would be harmed and/or killed by JS in relation to the land dispute. Oral hearing 10.The applicant requested for an oral hearing of the Leave Application. However, the applicant was absent at the hearing on 17 September 2026. 11.As held in Re Abdus Salam [2019] HKCA 1091, an application for leave to bring judicial review should not be dismissed for want of prosecution merely because the applicant failed to attend the oral hearing of the leave application. The correct approach is to treat the applicant as having withdrawn the request for a hearing by reason of the absence at the hearing, and to proceed to determine the leave application on its merits. 12.Thus, this court will proceed to consider the merits of the Leave Application based on the written materials before this court. Grounds for judicial review 13.The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016). 14.The applicant did not advance any ground for his intended judicial review in Form 86, nor in his supporting affirmation dated 30 June 2023. He only mentioned in the said affirmation that he sought leave to apply for judicial review against both the Director’s Decision and the Board’s Decision. Discussion 15.First of all, only the Board’s Decision is reviewable by judicial process and not the Director’s Decision. There are established statutory procedures of appeal from the Director to the Board and the applicant had invoked those procedures. The Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali [2018] HKCA 549). This court will therefore deal with the Leave Application in respect of the Board’s Decision only. 16.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 [2018] HKCA 524). 17.Thus, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any ground being advanced by the applicant for the intended judicial review. 18.In assessing the appeal/petition by the applicant, the Board held an oral hearing on 11 May 2023 and the applicant was present. Thus, the applicant was given the opportunity to present his case to the Board in person. 19.The Board laid out its assessment of the applicant’s credibility and his case on all the applicable grounds under the USM in paragraphs 33 to 79 of the Board’s Decision, and it is not necessary to repeat the same here. 20.In gist, the Board considered that the number and nature of inconsistencies and contradictions in the applicant’s evidence was sufficiently serious so as to undermine the reliability of his story. The Board considered the applicant’s change of the basis of his fear indicated a lack of conviction as to the strength of his own case, as well as a lack of credibility on his part. It also raised an inconsistency as to the basis of his real fear of returning to India. 21.The Board found no or no reliable evidence to show (and the Board did not accept) that (1) the applicant would be harmed or killed by JS if he were to return to India and that the police were interested in the applicant due to the false information provided by JS; (2) the applicant faced risk throughout India; (3) the applicant suffered injuries to the required severity; and (4) the state of India would be unwilling to help the applicant for a RC[1] reason. 22.The Board found that the applicant’s fear only arose from a land dispute with JS, which was a private matter. The applicant had never been harmed by JS or anyone else. His case showed no evidence of state acquiescence and his fear of JS was not for any Convention reasons. 23.Moreover, the Board found from country of origin information (“COI”) that it was clear that various organisations offering assistance and protection, including those cited in the Director’s Decision, did exist and at least appear to be accessible to the general public in India. The Board considered that there would be sufficient protection available to the applicant if he were refouled to India. 24.Furthermore, the Board had considered the viability of internal relocation for the applicant as a matter of caution. The Board had given full reasons in paragraphs 80 to 87 of the Board’s Decision for its finding that the applicant could relocate to other parts of India and stay there without undue hardship. The applicant had the option to relocate to cities that were sufficiently distant from his home area that his chances of being troubled by JS would be further reduced. 25.Thus, the Board concluded that the applicant had failed to establish a case for non-refoulement protection in Hong Kong on any of the applicable grounds under the USM. 26.The finding of facts, including the assessment of evidence, COI and risk of harm, was solely within the ambit of the Board in dealing with the applicant’s appeal/petition. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion. 27.Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision. 28.As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused. Conclusion 29.For reasons aforesaid, the Leave Application is dismissed. Dated the 23rd 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] The non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol |
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