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BETWEEN
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Rajput Harmeet |
1st Applicant |
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Kaur Swarnjeet |
2nd Applicant |
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Harshal |
3rd Applicant |
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Rajput Gurshaan |
4th Applicant |
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and |
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Torture Claims Appeal Board/ |
Putative |
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Non-refoulement Claims Petition Office |
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:
1. Leave to apply for Judicial Review be refused.
2. Non-compliance with Order 80, rule 2 of the Rules of the High Court in these proceedings be treated as a mere irregularity without rendering the daughter’s and the son’s application a nullity.
Observations for the Applicant:
THE APPLICATION
1. The applicants are a family. The 1st applicant is the father (“the father”), the 2nd applicant is the mother (“the mother”), the 3rd applicant is the daughter, aged 16 (“the daughter”) and the 4th applicant is the son, aged 15 (“the son”). They are illegal immigrants. The mother gave birth to the daughter and the son in India.
2. The applicants jointly apply for leave to apply for judicial review of the Decision dated 26 May 2025 of the Torture Claims Appeal Board (“the Board’s Decision”). Their joint application relies upon the facts of the father.
3. The applicants did not ask for a hearing. Though there are minors in this action, having considered the case, I consider that it is not necessary to call the applicants before the Court. I shall deal with their joint application on the papers.
4. Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.
The applicants
5. The applicants are nationals of India.
6. The applicants lodged a non-refoulement claim, on the basis that, if refouled, they will be harmed or killed by the gangsters hired by the mother’s relatives because of a dispute over a garage and other properties within the family.
7. Details of the facts are set out in the Board’s Decision. See hyperlinkhttps://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001292_2025_files/the_Board's_Decision.pdf.
The Director’s Decision
8. 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”).
9. By way of Notice of Decision dated 25 February 2025 (“the Director’s Decision”), the Director assessed the applicants’ claims jointly on all applicable grounds and dismissed their claims on all applicable risks because they were unsubstantiated.
The Board’s Decision
10. The applicants appealed the Director’s Decision to the Board. On 23 April 2025, the Board conducted an oral hearing for their appeal. The father and the mother had given evidence and answered the Board’s questions.
11. Having considered the evidence, the Board made the findings below.
(1) The Board did not believe the father’s evidence of threats from the gangsters because they had been wiped out by the Indian police in February 2024. The leader of the gang was killed and the followers were arrested by the Indian police. [64]
(2) The Board did not accept the father’s evidence that the higher authorities would not help him. [65]
(3) There is no evidence that the dispute related to political reasons. [68]
(4) The country of origin information showed that the Indian government had taken practical steps to improve the protection for its citizens and combat corruption. [78]&[130]
(5) The family may relocate to Mumbai or Kolkata, if necessary. [134]&[137]
(6) There was no evidence to show that the daughter and the son would face a separate persecution risk individually arising from the father’s case. [136]
(7) No evidence had been submitted that the daughter and the son would face a separate BOR 2 risk.
(8) State protection will also be available to the daughter and son if they return to India. [148]
(9) No evidence had been submitted that the daughter and the son would face a separate BOR 3 risk arising from the father’s case.[159]
12. For the reasons above, the Board dismissed their appeal and confirmed the Director’s Decision.
Application for leave to apply for judicial review
13. The applicants filed Form 86 on 6 June 2025 for leave to apply for judicial review of the Board’s Decision.
14. In support of their application, the father or the mother has not raised any specific reason to challenge the Board’s Decision.
DISCUSSION
15. 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 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).
16. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.
17. It is apparent that the applicants were not legally represented before the Board. However, the Board bore in mind the Court of Appeal case of Fabio Timogan & Others v Ruth [2020] HKCA 971 in its determination of their appeal [33]. It is clear that the Board had already had separate consideration for the daughter and the son.
18. The Court does not find any minor specific issue that was not submitted to the Board’s consideration because of lack of legal representation. The minors were born in India. They should have no problem if they return to India together with their parents.
19. The applicants therefore fail to show that there is any realistic prospect of success in their proposed judicial review.
DISPOSITION
20. I refuse to grant leave to the applicants to apply for judicial review of the Board’s Decision. Accordingly, I dismiss their joint application.
21. I shall treat non-compliance with Order 80, rule 2 of the RHC in these proceedings as a mere irregularity without rendering the daughter’s and the son’s application a nullity.
Dated the 4th day of February 2026
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(Klein Tse)
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 4/2/2026
Rajput Harmeet
Kaur Swarnjeet
Harshal
Rajput Gurshaan
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 4/2/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 25840; USM 25841; USM 25842; USM 25843
Director of Immigration
Putative Interested Party’s ref. no.: RBCL/2695/24; RBCL/2696/24; RBCL/2698/24; RBCL/2697/24
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1