CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1165 of 2025
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BETWEEN
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Ajmer Singh |
1st Applicant |
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Kawaljeet Kaur |
2nd Applicant |
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Priyanka |
3rd Applicant |
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Harmandeep Singh |
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 for the Applicants to apply for Judicial Review be dismissed; and
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 3rd and 4th Applicants’ application a nullity.
Observations for the Applicant:
THE APPLICATION
1. The applicants are members of a family. The 1st applicant is the father (“the father”). The 2nd applicant is the mother (“the mother”). The 3rd applicant is the daughter born on 30 January 2013 (“the daughter”). The 4th applicant is the son born on 11 March 2024 (“the son”). The parents are the next friends of the daughter and the son.
2. The applicants jointly apply for leave to apply for judicial review of the Decision dated 9 May 2025 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing their appeal against the Director’s Decision as described below.
3. The applicants appeared before the Court on 11 March 2026.
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 national of India and they are illegal immigrants. The mother and the son came to Hong Kong in 2023. The father and the daughter came to Hong Kong in 2024. They had overstayed and surrendered to the Immigration Department.
6. The applicants lodged a non-refoulement claim, on the basis that, if refouled, they will be harmed or killed by the father’s brother (“the uncle”) over a land dispute.
7. Details of the facts are set out in the Board’s Decision. See hyperlink. https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001165_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 22 January 2025 (“Director’s Decision”), the Director assessed the applicants’ claims 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 25 March 2025, the Board conducted an oral hearing for their appeals. The parents had given evidence and answered the Board’s questions.
11. Having considered the evidence, the Board made the findings below.
(1) State protection will be available to the applicants if they return to India. [50] & [53]
(2) The totality of the evidence showed that the parents were not reliable witnesses; that the uncle did not have intention to harm or kill the applicants; that there was no reliable evidence that the applicants would suffer serious harm in future, if they were refouled back to India; that the state was not involved in this case; that there is any child specific risk of harm or discrimination and that they will be able to obtain free education and health support if they return to India; that the applicants will be subjected to any of the applicable risks if they return to India. [73]-[117]
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 20 May 2025 for leave to apply for judicial review of the Board’s Decision.
14. In support of their application, the applicants have raise the grounds below to challenge the Board’s Decision.
(1) The Board had unlawfully fettered its discretion.
(2) It had acted procedurally unfair in that they were not asked to submit written submissions and it had relied on the source of news not officially recognized or it is simply hearsay. It had also relied on outdated cases, resulting in its groundless speculations that it is safe for them to return to India.
(3) The Board’s Decision to dismiss their appeal is unreasonable or irrational in the public law sense or is as a result of procedural errors or unfairness.
(4) It failed to meet the greater care and duty owed to the applicants as they were self-represented.
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. Before me, the mother said she did not think the Board was wrong and she had told the Board all the problems concerning her children.
17. It is apparent that the Board had born in mind the Court of Appeal’s decision in Fabio Arlyn Timogan, Salaudin Rabia & Salaudin Faheem v Evan Ruth, Esq, Adjudicator of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office [2020] HKCA 971 that in circumstances where the minors were not legally represented, it is incumbent upon the Board to see if there were any child-specific issues, which were not brought to the Boar’s attention because of lack of legal representation for the minors, and to have separate consideration of the child specific issues as the minors are more venerable to the applicable risks than the parent.
18. The Board had considered the children’s situations separately.
19. Those reasons under paragraph 14 do not constitute valid reasons to challenge the Board’s Decision as they are bare assertions without any evidence in support[1].
20. Furthermore, the mother had confirmed that there was no other child specific issue that was not submitted to the Board for its consideration. I do not see any material that may give rise to a concern of potential non-refoulement grounds relating specifically to the daughter and the son but which had not been advanced to the Board or considered by it because of the lack of legal representation on their behalf before the Board. I consider there is no valid complaint in relation to the child specific issues for the daughter and the son. See Re Penol, Sally BArsolaso & Iiggs Paul Derrick [2024] HKCA 790, Hon Chu VP and Barma JA, 22 August 2024, paragraphs 27-29.
21. I consider that the applicants do not have any reasonable prospect of success in their intended judicial review of the Board’s Decision.
Disposition
22. I refuse to grant leave to the applicants to apply for judicial review of the Board’s Decision. Accordingly, I dismiss their joint application.
23. 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 15th day of April 2026
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(Allen 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 to the Applicant
on 15/4/2026
Ajmer Singh
Kawaljeet Kaur
Priyanka
Harmandeep Singh
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 15/4/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 25532-5
Director of Immigration
Putative Interested Party’s ref. no.:
RBCL/1558/24 (CZ),
RBCL/37/24, RBCL/1559/24(CZ), RBCL/46/24
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] The Court of Appeal in Salim Ahmed alias MD Salim [2020] HKCA 244 held:
“20. … … 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: Re Mizan Sikder [2019] HKCA 20 and Ibrahim v Simon Russell [2019] HKCA 1327.” See also Re Haider Khalil [2021] HKCA 223 [16].”