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HCAL 1033/2021
[2026] HKCFI 3622
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1033 OF 2021
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BETWEEN
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Singh Tarsem |
Applicant |
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and |
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Torture Claims Appeal Board |
Putative |
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Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
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:
1. On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, “Director of Immigration” be added as the putative respondent, and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 9 July 2021”.
2. The applicant’s application for leave to apply for judicial review be dismissed.
Observations for the applicant:
The Leave Application
1. By way of Form 86 dated and filed on 21 July 2021, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of two decisions which were described as follows:-
“The Decision of the Director of Immigration dated 18th May 2018.
The Decision of the Adjudicator dated 9th July 2021”.
2. The Director of Immigration (“the Director”) rejected the applicant’s claim for non-refoulement protection on all the applicable grounds under the Unified Screening Mechanism (“the USM”) on 18 May 2018 (“the Director’s Decision”). The Torture Claims Appeal Board (“the Board”) made a decision dated 9 July 2021 (“the Board’s Decision”) in respect of the applicant’s appeal/petition against the Director’s Decision.
3. At the oral hearing before this court on 18 June 2026, this court explained to the applicant that the Director’s Decision was superseded by the Board’s Decision and was no longer susceptible to judicial review (see Re Moshsin Ali [2018] HKCA 549). The applicant then confirmed that the Leave Application was only in respect of the Board’s Decision, which can be viewed in the following hyperlink:-
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL001033_2021_files/the_Board's_Decision.pdf
4. The Board found that the applicant had failed to establish his claim for non-refoulement protection on all the applicable grounds under the USM. Hence, the Board rejected the applicant’s appeal/petition against the Director’s Decision and confirmed the same, which rejected his non-refoulement claim.
Amendments
5. The applicant named both the Director and “The Adjudicator of the Non-refoulement Claims Petition office appointed to determine the Applicant’s Petition” as the putative respondents and did not name any putative interested party in Form 86.
6. In fact, the adjudicator was only making the Board’s Decision in her capacity as a member of the Board. Moreover, as only the Board’s Decision is the subject matter of the Leave Application, only the Board should be named as the putative respondent, and the Director should be named as the putative interested party.
7. The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board and should not be named as a putative respondent at all.
8. As aforesaid, the decision in respect of which relief is sought in the Leave Application should be the Board’s Decision.
9. Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”, to add “Director of Immigration” as the putative interested party, and to amend the decision in respect of which relief is sought in the Leave Application to “Torture Claims Appeal Board’s decision dated 9 July 2021”.
The applicant’s case
10. 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.
11. In sum, the applicant claimed for non-refoulement protection because he feared that if refouled to India, he would be harmed or even killed by Sarabjit Singh and Satnam Singh (“the Singh brothers”), who had connections with the Bhartiya Janata Party (“BJP”), due to a land dispute.
Oral hearing
12. The applicant requested for an oral hearing of the Leave Application and his case was heard on 18 June 2026.
13. When this court asked the applicant to elaborate on the grounds of his intended judicial review which were stated in a document with the title “Grounds on which Relief is sought” annexed to his Form 86, he merely replied that whatever he wanted to say had been mentioned there and he had nothing to add.
Grounds for judicial review
14. 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).
15. The contents of the said document with the title “Grounds on which Relief is sought” were all very general allegations, which were in fact used by many applicants in similar applications as their grounds for applying leave to judicially review the Board’s decisions. It is like a template for such applicants and they just used the grounds stated therein without any regard to their own situations. Nevertheless, as the applicant is relying on those grounds to make the Leave Application, this court will still deal with the grounds as discussed below.
16. As aforesaid, the applicant did not elaborate on any of the grounds stated in the said document at the oral hearing.
Discussion
17. As mentioned, all the grounds contained in the document with the title “Grounds on which Relief is sought” are very general. Some of the grounds therein were directed at the Director. As the applicant had confirmed that only the Board’s Decision should be the subject matter of the Leave Application, this court will consider only those grounds directed at the Board in respect of the Board’s Decision.
18. There are a total of 6 paragraphs in the said document. Paragraphs 2 and 4 of the applicant’s grounds were directed at the Director. Hence, they could not be used to challenge the Board’s Decision and can be simply ignored. Only paragraphs 1, 3, 5 and 6 of the grounds are relevant to the Leave Application.
19. In paragraph 1 of the grounds, the applicant alleged that the adjudicator of the Board reached the Board’s Decision wrongly and it was not reasonable and fair as required by the Wednesbury test. However, the applicant did not state how or why the Board’s Decision was wrong, unfair and unreasonable. It does not help the applicant to establish any ground by just mentioning the right to life in paragraph 1 either.
20. In any event, the Board did assess the applicant’s risk of right to life but concluded that the evidence did not show that the applicant would be arbitrarily deprived of his life.
21. In paragraph 3 of the grounds, the applicant alleged that the adjudicator acted unreasonably and was procedurally unfair by placing too much reliance on country of origin information (“COI”) but failed to take his personal background and experience into account. However, the applicant did not state which aspects of his personal background and experience had not been taken into account by the Board.
22. In paragraph 5 of the grounds, the applicant alleged that the adjudicator was procedurally improper and/or unfair when assessing whether to accept or not to accept explanations provided by him, and unreasonably required him to respond to questions that he was not in a position to offer any response. This accusation lacks any particulars in support. The applicant did not state which explanations he provided were not accepted by the Board and which questions he was not in a position to offer any response.
23. There was in fact nothing wrong for the Board to question the applicant extensively to try to understand his claims better and to assess his credibility and his accounts of the events leading to his claim for non-refoulement protection. The questions were necessary for the Board to fulfil its duty of finding of facts in relation to the applicant’s claim. This court finds no fault or unfairness in the Board’s questioning of the applicant at all.
24. In the same paragraph of the grounds, the applicant further asserted that the adjudicator failed to take into account the nexus of political parties and official corruption which exists in his country, making the persecution effectively persecution by the State.
25. However, the Board had explicitly found that the applicant’s claim was based on a land dispute, and was not based on a well-founded fear of being persecuted on account of any of the Convention reasons.
26. Finally, in paragraph 6 of the grounds, the applicant simply alleged that the adjudicator ought to allow the appeal/petition and the Board’s Decision was irrational. There was no particulars or reasons given to say how or why the Board’s Decision was irrational.
27. The Board had in fact provided a very detailed analysis of the applicant’s claim and the reasons why the Board concluded that the applicant failed on all the applicable grounds under the USM to claim non-refoulement protection.
28. The Court of Appeal has repeatedly held that general assertions without particulars cannot be effective grounds to support a judicial review (see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; and Re Kharsu Numan [2019] HKCA 626). Further, as held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”.
29. Thus, none of the grounds that were contained in the applicant’s said document could establish any valid ground to challenge the Board’s Decision when they are so vague and general without any requisite particulars related to the applicant’s case.
30. The applicant’s alleged danger in his home country had been duly assessed but rejected by the Board. If the applicant intends to challenge the Board’s finding of facts, it is not permissible in a judicial review.
31. 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).
32. 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 valid ground being advanced by the applicant for the intended judicial review.
33. In assessing the appeal by the applicant, the Board held an oral hearing on 14 May 2020 and the applicant was present. Thus, the applicant was given the opportunity to present his case to the Board in person.
34. As can be seen from the Board’s Decision, the Board questioned the applicant extensively to try to understand his case better. The Board had laid out its analysis of the applicant’s evidence in paragraphs 47 to 53 of the Board’s Decision, and it is not necessary to repeat them here.
35. In gist, the Board found that there were inconsistencies, discrepancies and lack of full disclosure at different parts of the applicant’s evidence. The Board found that such evidence could not be accepted as reliable. There were also wild allegations without sufficient basis. There was no actual evidence that the Member of Legislative Assembly had or would support the Singh brothers in the land dispute. The Singh brothers were mere supporters of BJP and not politicians. There was no evidence to show that the Singh brothers had any influence, political or otherwise, much beyond his village. The Board also found that the Singh brothers did not have a real intention to kill the applicant, as they could have done so in the two attacks, but they did not. The applicant’s fear of harm from the Singh brothers was wholly exaggerated. The injuries he sustained as a result of the attacks were not serious.
36. As to the issue of state protection, the Board had gone through extensive, fully-referenced country of origin information (“COI”) and found that despite inadequacies, there was nothing to suggest that the Indian government was not genuine in its intention to address the problems of corruption and police inefficiency. The Board found that there was reasonable level of protection from the Indian government available to the applicant.
37. More importantly, the Board had given full reasons in paragraph 54 of the Board’s Decision for its finding that the applicant could safely and reasonably relocate to a city where the population was large and it would be very difficult for the Singh brothers to locate him.
38. Thus, the Board concluded that the applicant did not face a real risk of being subjected to any of the proscribed forms of harm under the USM if he was refouled to India.
39. The finding of facts, including assessment of evidence, COI and risk of harm, was solely within the ambit of the Board. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.
40. 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.
41. 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
42. For reasons aforesaid, the Leave Application is dismissed.
Dated the 24th day of June 2026
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( Gladys LEE )
for Registrar, High Court
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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
Notes for the applicant:
If leave has been granted, the applicant or the applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent/Handed to the applicant/the applicant’s solicitors on: 24/06/2026
Applicant’s ref. no:
Nil |
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Sent/Handed to the putative respondent / the putative respondent’s solicitors / such putative interested parties as may be directed by the Court / the putative interested parties’ solicitors on: 24/06/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 11776/18/5/361/IN2351
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 1546/18
(formerly RBCZ 10227/17) (T8I65)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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