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HCAL 1453/2021 and HCAL 881/2023
(Heard together)
[2025] HKCFI 4910
HCAL 1453/2021
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1453 of 2021
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BETWEEN
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Baljit Kaur |
1st Applicant |
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Rajwinder Singh Mehvish Singh Bawa |
2nd Applicant |
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and |
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Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
_____________
AND
HCAL 881/2023
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 881 of 2023
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BETWEEN
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Baljit Kaur |
1st Applicant |
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Rajwinder Singh Saina Kaur Bawa |
2nd Applicant |
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and |
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Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office |
Putative
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 (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge Levy:
The application for leave to apply for judicial review be dismissed.
Background
1. This is a family of four from India consisting of the husband (“Father”) and wife (“Mother”), and their two children, a son (“Son”) and a daughter (“Daughter”) who were born in Hong Kong and are minors. They had all made applications for non-refoulement claims.
2. The application for leave to apply for judicial review by the Father and the Mother (case number HCAL 2380/2018) was already dismissed on 9 May 2023.
3. The Mother, on behalf of the Son and the Daughter, filed respectively on 19 October 2021 (HCAL 1453 /2021) and 6 June 2023 (HCAL 881/2023), two notices of application for leave to apply for judicial review” in the prescribed Form 86.
4. In HCAL 1453 /2021, the intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 5 October 2018, dismissing the Son’s appeal against a decision of the Director of Immigration (“Director”) dated 24 October 2017 rejecting the Son’s non-refoulement claim.
5. In HCAL 881/2023, the intended judicial review was against the decision of the Board dated 16 May 2023, dismissing the Daughter’s appeal against a decision of the Director dated 30 September 2022 rejecting the Daughter’s non-refoulement claim.
6. Hence, the only undisposed applications are the applications by the Son and the Daughter.
7. The Board’s Decisions in HCAL 1453 /2021 and HCAL 881/2023 are set out in the following hyperlink: -
HCAL 1453/2021 hyperlink:
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL001453_2021_files/1st_Board's_Decision.pdf
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL001453_2021_files/2nd_Board's_Decision.pdf
HCAL 881/2023 hyperlink:
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL001453_2021_files/3rd_Board's_Decision.pdf
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL001453_2021_files/4th_Board's_Decision.pdf
8. The basis of the claims of the Son and the Daughter was that they would be harmed or killed by the Father’s political opponents. The reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them. Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.
9. The Mother has requested for an oral hearing in both cases. On 13 June 2025, the Removal Assessment and Litigation (Removal and Deportation) Section (1) of the Immigration Department faxed a letter to the court, informing the court that the applicants (the Father, the Mother, the Son and the Daughter) would like to withdraw the Leave Application. Enclosed with the said letter were 4 signed memos in both the Indian language and English dated 4 June 2025. The Father, the Mother, the Mother on behalf of the Son and the Daughter separately signed the 4 memos. In the memos, it was stated that they would like to withdraw the judicial review applications as they wanted to go back home as soon as possible. It was also stated that the problems had been solved and it was safe to return.
10. Since the Immigration Department also referred to the Father and the Mother in its fax notwithstanding that their application in HCAL 2380/2018 had already been disposed of, and that the withdrawal applications concern the two minor applicants, I directed a hearing be held to dispose of the withdrawal applications of the Son and the Daughter. I further notified the Father to attend the hearing in case the court needed clarification from him.
Discussion
11. The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[1] It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.
12. In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[2], and further to make full and frank disclosure of all material facts to be verified by an affidavit. In the Forms 86 and the supporting affirmations filed by the Mother on behalf of both the Son and the Daughter, no such grounds were provided.
13. As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness, or irrationality.[3] In both of the present cases, the two different adjudicators of the Board found that since the Son and the Daughter relied on the same risks that the Father allegedly faced, and that it had been determined that the Father would not face any real risk of harm, the adjudicators dismissed their appeals against the decisions of the Director. These are findings of fact, which the court in a judicial review will not interfere with subject to there being any public law errors.
14. Bearing in mind the enhanced standard that should be adopted in scrutinizing the decision of the Board, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a very high standard of fairness. The Mother has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision, nor were such grounds identified in the Form 86 or otherwise. The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with any realistic prospects of success such that would enable this court to grant leave[4].
Withdrawal application
15. At the hearing held on 18 September 2025, the Father, the Mother and the Daughter attended in person. The Father and the Mother both confirmed that their own cases were already disposed of, leaving the applications in respect of the Son and the Daughter outstanding. Since minors are involved, I asked the Mother to confirm under oath of the applications for withdrawal. The Mother affirmed that she had made the applications to withdraw on behalf of the Son and the Daughter voluntarily, and that she understood the consequences of the withdrawal.
16. Notwithstanding that a child applicant should proceed in accordance with the regime under Order 80 r.2 of the Rules of the High Court with the appointment of next friend and acting by a solicitor, I decided to treat the non-compliance as an irregularity: Fabio v Evan Ruth [2020] HKCA 971 at [57].
17. 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.
Orders
18. The applications for leave to apply for judicial review in both cases are dismissed.
Dated the 27th day of October 2025
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(Alfred Chan)
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 to the Applicant
on 27/10/2025
Baljit Kaur
Rajwinder Singh Mehvish Singh Bawa
Rajwinder Singh Saina Kaur Bawa
Applicant’s ref. no:
Nil. |
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Sent 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 27/10/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 9057/17/11/68/IN1702, USM 9058/17/11/69/IN1703,
USM 16984/20/6/17/IN3174,
USM 21056
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 14/20 (formerly RBCZ 10918/19), QA T/C 2110/17 (formerly RBCZ 10174/15), QA T/C 2111/17 (formerly RBCZ 10175/15), QA T/C 830/22 (formerly as RBCZ 5000675/22), QA T/C 2110/17 (formerly RBCZ 10174/15), QA T/C 2111/17 (formerly RBCZ 10175/15)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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