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HCAL 118/2025
[2025] HKCFI 3141
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 118 of 2025
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BETWEEN
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Gurinder Preet Singh |
1st Applicant |
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Parvinder Kaur |
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 K.W. Lung:
Leave to apply for Judicial Review be refused.
Observations for the Applicants:
THE APPLICATION
1. The applicants are husband and wife. They had lodged a non-refoulement claim with the Director of Immigration (“the Director”), who rejected their claim by a Notice of Decision dated 26 January 2017 (“the Director’s Decision”).
2. The applicants appealed to the Torture Claims Appeal Board (“the Board”), which dismissed their appeal by Decision dated 9 August 2018 (“the Board’s 1st Decision”). See HCAL 1762/2018 and paragraph 6 of the Judgment of Court of Appeal [2022] HKCA 587.
3. The applicants applied to the Court for leave for judicial review of the Board’s 1st Decision. The applicants were legally represented.
4. This Court dismissed their application.
5. On appeal, the Court of Appeal ordered that since the Board in the Board’s 1st Decision conceded that it was possible that the applicants might establish their claim, the issue of internal relocation should be canvassed, which was not properly done. The matter was therefore remitted to the Board to be re-assessed by another constituted Board, which was duly done.
6. By Decision dated 31 December 2024 (“the Board’s 2nd Decision”), the Board dismissed the applicants’ appeal and confirmed the Director’s Decision.
7. The applicants jointly apply for leave to apply for judicial review of the Board’s 2nd Decision.
8. The applicants appeared before the Court on 23 April 2025. As they had applied for legal aid and the result was not yet known, they applied to adjourn the matter until the result of their application is obtained. A memorandum dated 27 March 2025 stated that they applied for legal aid. The Court first refused to adjourn the matter. Upon further reflection, the matter was adjourned to 11 June 2025.
9. The applicants appeared before the Court on 11 June 2025 and confirmed that the Director of Legal Aid had refused their application. The matter therefore proceeded.
The applicants
10. The applicants are nationals of India. They came to Hong Kong on 24 July 2014 as visitors. They overstayed and surrendered to the Immigration Department on 11 August 2014. They lodged a non-refoulement claim on the basis that, if refouled, they will be harmed or killed by a person called Sukhjit Singh Kaka Lohgarh (“Kaka”), who is said to have influence throughout Punjab because of his rigorous involvement in the religious and political sphere in that State of India, and/or the Indian authorities. The facts of the claim are set out in paragraph 3 of the judgment of the Court of Appeal dated 4 May 2022 [2022] HKCA 587 and will not be repeated here.
The Director’s Decision
11. The Director considered the applicants’ claims in relation to the following risks:
a. risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);
b. risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);
c. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and
d. risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).
12. By Notice of Decision dated 26 January 2017 (“the Director’s Decision”), the Director rejected the applicants’ claim, finding that the frequency and intensity of the threats and ill-treatment inflicted upon the 1st applicant by Kaka under/or the Indian authorities did not attain the requisite minimum level of severity. The Director did not accept that the 1st applicant would face a real risk of harm from the Indian police and/or authorities, or that they had any particular adverse interest in him. The Director also considered the availability of state protection, and the option of internal relocation, further lowered or negated the perceived risk of harm to the 1st applicant.
The Board’s 2nd Decision
13. By Order of the Court of Appeal, the matter was remitted to the Board of different constitution for re-consideration. The applicants and the Director were legally represented before the Board. The hearing took place on 13 June 2024, 9 September 2024 and 24 October 2024 respectively.
14. Having considered the evidence and submissions by the respective legal representatives of the parties, the Board made the following findings:
(1) The 1st applicant’s assertions and propositions are not credible as they are speculation and surmise for gaining permission to remain in Hong Kong only [144];
(2) The 1st applicant had the intention of making use of non-refoulement regime to achieve his objective of finding work abroad or live in developed first-world nations [144 (t)];
(3) The Board rejected the 1st applicant’s allegation that he fled India because he lost faith in the Indian judicial system [144(u)];
(4) The Board did not accept the 1st applicant’s allegation that if they return to India, they will be taken by Kaka, whereby the police might claim he tries to escape and they could shoot him or his wife, or both [144(y)];
(5) The 1st applicant does not face a real risk of serious harm, or of torture, or of CIDTP, or of death, at the hands of Kaka, or at the hands of anyone else, now or in the reasonably foreseeable future if he is to return to India. [146]
15. For the reasons above, the Board did not find it necessary for it to consider state protection or internal relocation alternative for the applicants. [[147]-[148]
16. It therefore dismissed their appeal and confirmed the Director’s Decision. See the Board’s Decision through hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL000118_2025_files/the_Board's_Decision.pdf.
Application for leave to apply for judicial review
17. The applicants filed Form 86 in Chinese on 9 January 2025 for leave to apply for judicial review of the Board’s 2nd Decision. The applicants did not put forth any grounds in support of their application.
18. In the 1st applicant’s affirmation in support of their application, the 1st applicant did not raise any specific reason to challenge the Board’s 2nd Decision.
DISCUSSION
19. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s 2nd Decision on the applicants’ appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).
20. The Court will bear in mind that the Board’s 2nd Decision should be examined with rigorous examination and anxious scrutiny. The applicants appeared before me, the 1st applicant confirmed that he understood the Board’s 2nd Decision. They did not raise any reason to challenge the Board’s 2nd Decision.
21. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:
“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”
22. The applicants therefore fail to show that there is any realistic prospect of success in their proposed judicial review.
DISPOSITION
23. I refuse to grant leave to the applicants to apply for judicial review of the Board’s Decision. Accordingly, I dismiss their joint application.
Dated the 26th day of August 2025
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(M.O. WONG)(Ms)
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 Applicants:
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 Applicants
on 26/8/2025
Gurinder Preet Singh
and
Parvinder Kaur
Applicants’ 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 26/8/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 6135 (R) and
USM 6136 (R)
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1465-66/16
RBCZ 3002151/14 & RBCZ 3002152/14 --- T6S74
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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