GURDEEP SINGH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 670/2026

[2026] HKCFI 3911

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 670 of 2026

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’s application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 1 April 2026, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Director (“Director”) dated 12 March 2026 (“Director’s Subsequent Decision”) refusing the applicant’s request (“Request”) for making a subsequent claim for non-refoulement under s.37ZO of the Immigration Ordinance. In an earlier decision of the Director dated 28 December 2015 (“Director’s Earlier Decision”), the Director rejected the applicant’s non-refoulement claim under all applicable grounds[1] except the ground based on BOR 2 risk, which further ground was also rejected by a decision of the Director dated 14 March 2017 (“Director’s Earlier Further Decision”).

2.  On 17 March 2020, the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dismissed the applicant’s appeals against the Director’s Earlier Decision and the Director’s Earlier Further Decision (“Board’s Decision”). On 3 March 2026, a Deputy High Court Judge refused to grant leave to the applicant to apply for judicial review of the Board’s Decision (“Judge’s Decision”).

Background

3.  The background can be viewed at Judge’s Decision ([2026] HKCFI 724) at the Judiciary website. Unless otherwise specified, I shall also adopt the abbreviations and descriptions stated in the Board’s Decision.

4.  On 7 December 2025, the applicant made the Request, and was not legally represented in the Request.

The statutory provisions on subsequent claims

5.  Subsequent non-refoulement claims are regulated by s 37ZO of the Immigration Ordinance (Cap 115), which provides:

Section 37ZO. “Limitation on subsequent claim

(1)  Except as provided in subsection (2), a person who has previously made a torture claim must not subsequently make another torture claim.

(2)  A person may make a subsequent claim if the person provides sufficient evidence in writing to satisfy an immigration officer that—

(a)  there has been a significant change of circumstances since the previous claim was finally determined or withdrawn; and

(b)  the change, when taken together with the material previously submitted in support of the previous claim, would give the subsequent claim a realistic prospect of success.

(3)  In deciding whether or not a person may make a subsequent claim under subsection (2), an immigration officer may take into account any finding of credibility or fact made by an immigration officer or the Appeal Board in relation to a torture claim previously made by the person.”

6.  The applicant submitted a total of 4 letters together with an additional document (a judgment (“Judgment”) from the Judicial Magistrate 1^st Class, Chandigarh- State vs Kamaljit Kaur & Anor. Date of decision: 25 March 2022) in support of the Request. The Request was based on the applicant’s claim that, if refouled to India, he would face persecution by the court in Chandigarh, India.

Discussion

7.  A leave application operates as a ‘filtering’ process. Hence, there is no requirement or expectation to give elaborate reasons for my decision[2]. It is therefore sufficient to state my observations after considering the Director’s Decision and the applicant’s materials adduced.

8.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[3], and further to make full and frank disclosure of all material facts to be verified by an affidavit. The Form 86 provided no such grounds. In the supporting affirmation, the applicant averred that the Director had failed to give enough weight to the arguments he raised in his case; that the Director was wrong in having significantly relied on the source of news which was not officially recognized or simply hearsay; and that it was procedurally unfair to require the applicant to show credibility without any legal representation. In addition, the applicant also exhibited a copy of the Judgment to the supporting affirmation.

9.  As the applicant had requested for a hearing, the court scheduled a hearing on 5 May 2026. The applicant appeared in person on the strength of a court-issued body order as he was in detention. However, since the proceedings were subjected to a statutory Legal Aid stay, and the applicant did not wish the court to uplift the stay, the hearing was therefore re-fixed to 30 June 2026 after the expiry of the statutory stay. At the rescheduled hearing, the applicant was brought to court by a body order. The applicant only asked the court to grant leave to the Leave Application.

10.  In the Director’s Subsequent Decision, after the Director had taken into account the facts and findings he made in the Director’s Earlier Decision and the Director’s Earlier Further Decision as well as the Board’s Decision, the Director found that the Request lacked credence. The Director found that after the Board’s Decision, the applicant did not promptly make the Request and only did so after a delay of about 5 years. The Director found that the applicant had had ample opportunities to raise a new claim before the Board’s Decision which disposed of his original non-refoulement claim. In any event, even if the Director were to accept the credibility of the applicant’s new claim that his wife had framed a false claim against him, the Director was satisfied that there was the existence of judicial fairness in India, and further that legal aid would be available to him. After having considered the update country of origin information, the Director found that there was no change of situation in India that would lead to the unavailability of state protection and internal relocation. The Director found that the Request had no realistic prospect of success and refused the applicant’s Request. These are findings of fact, which the court in a judicial review will not interfere with subject to there being any public law errors.

11.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Director correctly applied the law and observed a high standard of fairness. The applicant’s grounds stated in the supporting affirmation were vague and general, and lacked particulars. The Judgment exhibited to the supporting affirmation had also been considered by the Director, and could not advance the Leave Application. The applicant has not shown any errors of law or procedural unfairness or irrationality in the Director’s Subsequent Decision. The applicant’s intended challenge to Director’s Subsequent Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[4].

Withdrawal application

12.  After the re-scheduled hearing on 30 June 2026, on 3 July 2026, the Removal Assessment and Litigation (Removal and Deportation) Section (2) of the Immigration Department faxed a letter to the court, informing the court that the applicant would like to withdraw his judicial review application. Enclosed with the said letter was the applicant’s signed memo dated 3 July 2026 in English. In the memo, the applicant stated that he wanted to withdraw the Leave Application as he wanted to go back to his home country, India.

13.  Apart from the application to withdraw the Leave Application referred to above, there is nothing outstanding in this action. In the circumstances, I make an order to dismiss the Leave Application, and hereby order the dismissal of the Leave Application: see Re Manik Md Mahamudun Nabi [2022] HKCA 471; Ngo Xuan Tuyen v Torture Claims Appeal Board [2024] HKCA 1140.

Order

14.  The applicant’s application for leave to apply for judicial review be dismissed.

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