SHAMSHER SINGH AND OTHERS v. TORTURE CLAIMS APPEAL BOARD

HCAL 3603/2019

[2026] HKCFI 1457

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3603 OF 2019

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

	consideration of the documents only; or
	consideration of the documents andoral submissions by the applicants in open court;

1.  On this court’s own motion, the name of the 1^st applicant be amended to “Shamsher Singh”, the name of the 3^rd applicant be amended to “Shubhkarman Singh (a minor) by Shamsher Singh, his next friend”, the name of the putative respondent be amended to “Torture Claims Appeal Board”, and the name of the putative interested party be amended to “Director of Immigration”.

2.  The 1^st and 2^nd applicants’ application for leave to apply for judicial review in respect of the Torture Claims Appeal Board’s decision dated 22 November 2019 be dismissed.

3.  Leave granted to the 3^rd applicant to apply for judicial review in respect of the Torture Claims Appeal Board’s decision dated 22 November 2019.

4.  The 3^rd applicant is directed to issue an originating summons for the intended judicial review on or before 24 March 2026 pursuant to Order 53, rule 5(5) of the Rules of the High Court.

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated and filed on 4 December 2019, the 1^st applicant, the 2^nd applicant (the 1^st applicant’s wife) and the 3^rd applicant (the son of the 1^st and 2^nd applicants) applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 22 November 2019 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003603_2019_files/the_Board's_Decision.pdf

2.  The Board found that none of the applicants had shown any grounds for non-refoulement protection on the basis of any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board dismissed their appeal/petition against the decision of the Director of Immigration (“the Director”) dated 9 February 2018, which rejected their claims for non-refoulement protection, and confirmed the same.

Amendments

3.  The 1^st applicant named himself as “Shamsher-Singh” in Form 86. However, according to his recognizance, his name should just be “Shamsher Singh”. Thus, on this court’s own motion, the 1^st applicant’s name is amended accordingly.

4.  The 3^rd applicant is a minor and represented by his father, ie the 1^st applicant, as his next friend. Thus, on this court’s own motion, the 3^rd applicant’s name in Form 86 is amended to “Shubhkarman Singh (a minor) by Shamsher Singh, his next friend”.

5.  The applicants named the Board as both the putative respondent and the putative interested party in Form 86, and spelt the Board’s name wrong.

6.  In fact, the Board should only be the putative respondent and the Director should be the putative interested party.

7.  Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board” and the name of the putative interested party is amended to “Director of Immigration”.

The applicants’ case

8.  It is not necessary for this court to repeat the details of the applicants’ case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

9.  In sum, the applicants claimed for non-refoulement protection because all three of them would be at risk of harm from the 1^st applicant’s brother in law (ie the 2^nd applicant’s brother), Balvinder Singh (“Balvinder”) to whom the 1^st applicant was indebted.

10.  The 1^st applicant borrowed 600,000 rupees from Balvinder in 2011 to invest in a business proposition with a man named Sonu. However, as Sonu disappeared after receiving the money from the 1^st applicant, the 1^st applicant was unable to repay the debt owed to Balvinder. In 2013, Balvinder came to the applicants’ home to demand repayment of the loan. He slapped the 1^st applicant once and threatened the 1^st applicant that he would harm him if he failed to repay.

Oral hearing

11.  The applicants requested for an oral hearing of the Leave Application and their case was heard on 24 February 2026.

12.  The 3^rd applicant’s legal aid application was refused by the Director of Legal Aid on 24 November 2025. At the hearing before this court on 24 February 2026, the 1^st applicant confirmed that he would not engage any private lawyer to represent the 3^rd applicant. Thus, the 3^rd applicant was only represented by the 1^st applicant in the Leave Application.

13.  When this court asked the applicants for the grounds of their intended judicial review, both the 1^st and 2^nd applicants said that they needed more time to remain in Hong Kong as the 3^rd applicant was receiving education in Hong Kong.

14.  The 1^st applicant also mentioned that Sonu had caused problems to him. However, he confirmed that the problem arising from Sonu had been presented to the Board.

15.  When this court asked the 1^st applicant for the 3^rd applicant’s grounds for judicial review, the 1^st applicant said that he had nothing to add, except that the 3^rd applicant needed to stay in Hong Kong for education.

Legal representation for the 3^rd applicant

16.  Since the 3^rd applicant is a minor, the 1^st applicant, in his capacity as the 3^rd applicant’s next friend, must act by a solicitor according to Order 80, rule 2 of the Rules of the High Court.

17.  However, as aforesaid, the 1^st applicant would not seek legal representation for the 3^rd applicant. This court is of the view that the lack of legal representation will not prejudice the interest of the 3^rd applicant in the Leave Application.

18.  Thus, this court will just treat the absence of legal representation for the 3^rd applicant as a mere irregularity and it will not nullify the proceedings herein (see Order 2, rule 1(1) of the Rules of the High Court).

Grounds for judicial review

19.  The applicants are required to identify clearly the grounds for their intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

20.  The applicants did not advance any ground for their intended judicial review in Form 86.

21.  In the 1^st applicant’s supporting affirmation dated 4 December 2019, the 1^st applicant merely stated that he was not satisfied with the Board’s Decision because his life was not safe in his own country.

22.  As aforesaid, all the applicants did not raise any further grounds for challenging the Board’s Decisions at the oral hearing before this court. They merely said that they wanted more time to remain in Hong Kong so that the 3^rd applicant could get education here, which was not a ground for judicial review at all.

Discussion

23.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness, or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

24.  Thus, it is not for this court to re-assess the applicants’ cases for non-refoulement protection. This court will only scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality, despite the lack of any valid grounds being advanced by the applicants.

25.  In assessing the applicants’ appeal/petition, the Board held an oral hearing on 22 November 2018. The 1^st and 2^nd applicants were present. Neither of them wished to add anything new to the particulars of their claim, although the 1^st applicant did give evidence to clarify certain matters with the Board.

26.  As can be seen from the Board’s Decision, the Board assessed the risks of the applicants from Balvinder carefully. The Board accepted that the 1^st applicant did borrow money from Balvinder, and the 1^st applicant was unwilling, and quite likely unable, to repay Balvinder. However, the Board did not accept that his failure to do so would result in any risk to him or any of the applicants if they were to return to India.

27.  The Board found that despite the loan from Balvinder being outstanding for at least two and a half years, Balvinder had only made one visit to the 1^st applicant’s home to demand repayment. On that occasion, Balvinder slapped the 1^st applicant once. There had been no specific threat to the 1^st applicant from Balvinder, save that Balvinder threatened him with “harm” if he failed to repay. The Board found that the word “harm” was too vague to amount to a genuine threat of death or serious harm to the 1^st applicant or his family. The Board was in no doubt that Balvinder wanted the money back. However, the Board did not infer from either this vague verbal threat or the minor assault that the life or safety of the 1^st applicant or his family were genuinely at risk from Balvinder. There was simply no evidence to suggest that the single threat from Balvinder was anything more than an expression of his frustration over the unpaid loan. The Board found that it was not a genuine threat to kill or harm anyone, and certainly not one that Balvinder was going to act upon.

28.  The Board also found it plain that there was no question of state involvement in the applicants’ predicament. The dispute between the 1^st applicant and Balvinder was simply a private monetary dispute. The threat from Balvinder was not for a Convention reason. The applicants had never sought assistance from the police in India. The Board found from country of origin information (“COI”) that although the situation in India was not ideal because of corruption and inefficiency, sufficient state protection was available to the applicants should they resort to it.

29.  Moreover, the Board found that the 1^st applicant’s claim that he would be unable to relocate to elsewhere in India because Balvinder would be able to locate him through his relatives was mere guesswork on the part of the 1^st applicant. The Board found that the likelihood of Balvinder having the means and ability to locate any of the applicants if they were to relocate within India to be remote as to be negligible. The Board was satisfied that relocating in India was both reasonable and practical for the applicants.

30.  Hence, the Board concluded that all the applicants were not entitled to non-refoulement protection under any of the applicable grounds.

31.  The assessment of evidence, COI materials and risk of harm were primarily within the sole ambit of the Board on appeal/petition. The Board was entitled to come to its own conclusion. This court finds no errors of the Board in reaching its decisions for the 1^st and 2^nd applicants at all.

32.  Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof in relation to the 1^st and 2^nd applicants’ case. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision regarding the 1^st and 2^nd applicants. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decisions on the 1^st and 2^nd applicants.

33.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the 1^st and 2^nd applicants have failed to establish such a claim and hence leave must be refused for them to apply for judicial review.

34.  However, this court notes that the Board did not in fact assess the risk of the 3^rd applicant separately as a child, who was 8 years old when his case was presented to the Board for assessment.

35.  As can be seen from the Board’s Decision, there was no discussion of the needs and risks specific to the 3^rd applicant by the Board at all.

36.  As held by the Court of Appeal in Fabio Arlyn Timogan and Ors v Evan Ruth and Anor [2020] HKCA 971:-

“Even if the claims were based on the same set of primary facts, it would be an error of law if the decision-maker simply decided all the claims as if they were one composite claim without giving separate consideration to the personal circumstances of each claimant separately. It does not necessarily follow from the dismissal of the claim by a parent that the children’s claims could be dismissed without further consideration of their personal situations”.

37.  Thus, the Board has clearly committed an error of law when it failed to give separate consideration to the 3^rd applicant’s claim and his personal circumstances in the Board’s Decision.

38.  In this regard, leave should be granted to the 3^rd applicant to apply for judicial review in respect of the Board’s Decision concerning his own case.

Conclusion

39.  For reasons aforesaid, the 1^st and 2^nd applicants’ Leave Application in respect of the Board’s Decision is dismissed. Leave is granted to the 3^rd applicant to apply for judicial review in respect of the Board’s Decision.

40.  The 3^rd applicant is directed to issue an originating summons for the intended judicial review on or before 24 March 2026 pursuant to Order 53, rule 5(5) of the Rules of the High Court.

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