Vikramjit Singh, consideration of the documents and oral submissions by the in open court, Notes for the : If leave has been granted, the or his solicitors must, a) serve on the 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 proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5))
Torture Claims Appeal Board
- Michael WONG
|
HCAL 1964/2025 [2026] HKCFI 145 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1964 OF 2025
Application for leave to apply for judicial review NOTIFICATION of the Judge’s decision (Order 53, rule 3) Following:
Observations for the applicant: The Leave Application 1. By way of Form 86 dated 31 August 2025 and filed on 1 September 2025, the applicant 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 19 August 2025 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:- 2. The Board found that the applicant was unable to make out his claims for non-refoulement protection on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board rejected the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 10 June 2025 and confirmed the same. Amendments 3. In Form 86, the applicant named the Director and “The Adjudicator of the Non-refoulement Claims Petition office appointed to determine the Applicant’s Petition” as the putative respondents and did not name any putative interested party. 4. In fact, only the Board should be named as the putative respondent and the Director should be named as the putative interested party. 5. The Non-refoulement Claims Petition Office is just an office which provides administrative and secretariat support to the adjudicators of the Board and should not be named as a putative respondent at all. 6. Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and to add “Director of Immigration” as the putative interested party. The applicant’s case 7. It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above. 8. In sum, the applicant claimed for non-refoulement protection because if refouled to India, he would be harmed, ill-treated or killed by three individuals named Harmeet Singh, Harkirat Singh and Harpreet Singh respectively (collectively as “the Enemies”) who were closely associated with the Indian National Congress party (“the Congress”) due to the applicant’s past support of the Shiromani Akali Dal party. Oral hearing 9. The applicant requested for an oral hearing of the Leave Application and his case was heard on 4 December 2025. 10. When this court asked the applicant for the grounds of the intended judicial review, he merely said that his life was in danger in India and he could not go back. He also confirmed that the matters which gave rise to his non-refoulement claims had all been considered by the Board. Apart from that, he had nothing to say. Grounds for judicial review 11. The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016). 12. The applicant did not advance any grounds for his intended judicial review in Form 86, nor in his supporting affirmation dated 31 August 2025. 13. What he said at the oral hearing before this court did not amount to any valid ground for judicial review either. Discussion 14. 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). 15. Thus, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any valid ground being advanced by the applicant for the intended judicial review. 16. In assessing the applicant’s appeal/petition, the Board held an oral hearing on 8 August 2025. The applicant was present and was thus given the chance to present his case to the Board in person. 17. The Board accepted that the applicant might be subjectively afraid of returning to India because of the past threats of harm or death against him by the Enemies. However, the Board found that there was no, or no reliable evidence to show that (1) the Enemies intended to seriously harm or kill the applicant if he were refouled to India; (2) the applicant faced risk across India; (3) the applicant suffered injuries to the required severity; and (4) the state of India was unwilling to help the applicant for a RC[1] reason. 18. The Board also found that the Enemies were non-state actors and the applicant’s dispute with them was a personal one only. 19. The applicant was able to file a First Information Report against the Enemies in their only attack against him. After due consideration of objective country of origin information (“COI”) and the applicant’s claims, the Board found that there would be sufficient state protection available to the applicant if he were refouled to India. 20. Given the above findings, it was not necessary for the Board to make finding on the viability of internal relocation. Nevertheless, the Board did so for the applicant as a matter of caution. The Board found nothing to suggest that the Enemies would have any interest to locate the applicant outside his home area. The applicant had not experienced any impediment in Chennai or Pune in the past. The Board was of the view that the applicant, being an able-bodied, highly-educated young man with work experience, could reasonably relocate to either of these places without undue hardship to further reduce any chance of being personally targeted by anyone in his home area. 21. Thus, the Board found that the applicant’s claim for non-refoulement protection had failed on all the applicable grounds under the USM. 22. The danger that the applicant allegedly would face upon his refoulement to India had indeed been duly assessed but rejected by the Board. If the applicant intends to challenge the Board’s finding of facts, it is not permissible in a judicial review. 23. The assessment of evidence, COI and risk of harm was primarily within the realm of the Board. The Board was entitled to come to its own conclusion. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion. 24. 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. 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. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision. 25. As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, 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 applicant has failed to establish such a claim and hence leave must be refused. Conclusion 26. For reasons aforesaid, the Leave Application is dismissed.
Dated the 7th day of January 2026
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 [1] RC is the abbreviation for the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
| ||||||||||||||||||||||||||||||||||||||||