SEKHON HARBANS SINGH v. TORTURE CLAIMS APPEAL BOARD

HCAL 423/2021

[2026] HKCFI 1452

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 423 OF 2021

Application for leave to apply for judicial review

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

Following:

1.   On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”.

2.   The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The leave Application

1.  By way of Form 86 dated and filed on 24 March 2021, 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 11 March 2021 (“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/2021/HCAL000423_2021_files/the_Board's_Decision.pdf

2.  The Board found that the applicant had failed to demonstrate that he was entitled to non-refoulement protection in Hong Kong on any of the applicable grounds under the Unified Screening Mechanism (“the USM”).  Hence, the Board dismissed the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 4 September 2018, which rejected the applicant’s non-refoulement claim, and confirmed the same.

Amendments

3.  In Form 86, the applicant named the Board / Non-refoulement Claims Petition Office as the putative respondents, when only the Board should be named as the putative respondent.

4.  The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board and should not be named as a putative respondent at all. 

5.  This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”.

The applicant’s case

6.  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.

7.  In sum, the applicant claimed for non-refoulement protection because if refouled to India, he would be tortured and/or killed by Dr Ajit Singh Shant (“Shant”), or the Shiromani Akali Dal (“Akali Dal”), or the Indian police.  The applicant claimed that he used to be a member of Akali Dal and worked for Shant.  He was disappointed with them as Shant was involved in illegal and improper activities.  He quitted Akali Dal and joined the Indian National Congress (“Congress”).  Shant was angry at him for joining Congress and thought that the applicant had proof of his illegal activities and would use the information against him.  Shant framed him for false cases and he was tortured by the police while in detention.

Oral hearing

8.  The applicant requested for an oral hearing and his case was heard on 24 February 2026.

9.  When this court asked the applicant to elaborate on the grounds of his intended judicial review which were stated in his Form 86, the applicant merely said that he had forgotten all about them due to his injury.  He just knew that his life was in danger, his enemy enjoyed political power and the police was under his enemy’s control.  His father committed suicide but he was not in contact with his father.  He was still receiving threats from his enemy.

Grounds for judicial review

10.  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).

11.  In Form 86 under the heading “Grounds on which Relief is sought”, the applicant stated that the Director and the Board reached their decisions wrongly.  The decisions were not reasonable and fair (as required by the Wednesbury test).  He also mentioned that his right to life should be protected.

12.  As aforesaid, the applicant did not elaborate on any of those grounds at the oral hearing before this court.  What he said at the hearing did not amount to any grounds for judicial review either.

Discussion

13.  First of all, the contents in the applicant’s Form 86 under the heading “Grounds on which Relief is sought” were all very general.  The applicant alleged that the adjudicator of the Board reached the Board’s Decision wrongly and it was not reasonable and fair as required by the Wednesbury test.  However, the applicant did not state how or why the Board’s Decision was wrong, unfair and unreasonable.  It does not help the applicant to establish any ground by just mentioning the right to life either. 

14.  In any event, the Board did assess the applicant’s risk of right to life but concluded that the risk of the applicant being killed by Shant, the Akali Dal or the Indian police on his return to India was low.

15.  The Court of Appeal has repeatedly held that general assertions without particulars cannot be effective grounds to support a judicial review (see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; and Re Kharsu Numan [2019] HKCA 626).  Further, as held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “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”.

16.  Thus, none of the grounds that were contained in the applicant’s Form 86 could establish any valid ground to challenge the Board’s Decision when they are so vague and general without any requisite particulars related to the applicant’s case.

17.  The applicant’s alleged danger in his home country had been fully 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.

18.  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).

19.  Thus, even though the applicant has failed to establish any valid ground for challenging the Board’s Decision, this court will still scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.

20.  In assessing the applicant’s appeal/petition, the Board held an oral hearing on 25 February 2021 and the applicant was present.  Thus, the applicant was given the chance to present his case to the Board in person.  However, the applicant refused to answer the Board’s questions shortly after the commencement of the Board’s hearing despite the Board’s reminder that he had to prove his claim and that there were issues that the Board found necessary to clarify with him.

21.  After due consideration of all the evidence, the Board found that the applicant had failed to establish the centerpiece of his story, namely that Shant and the Akali Dal would kill him or cause him grave harm if he were to return to India.  By reason of the applicant’s refusal to answer the Board’s questions, the Board was not able to clarify with him many areas of his account where the Board found lacking in detail, inconsistent with his previous statements, country of origin information (“COI”) or other objective information.  The Board also laid out in paragraphs 14(a) to (l) the multiple aspects of the applicant’s claims which defied logic and/or were implausible.

22.  Apart from his personal profile and immigration history, the applicant’s claims were rejected in their entirety.  The Board found that the risk of the applicant being harmed or killed by Shant, the Akali Dal or the Indian police to be low for reasons that he had failed to establish a relationship, and hence enmity between himself and Shant.  There was no proven reason for Shant to cause him harm, whether by himself or through members of the Akali Dal or the Indian police.

23.  The Board also found the fact that the applicant’s parents continued to live in the family home and had not been subjected to any ill-treatment by Shant was good evidence to show that the risk of him being harmed by Shant on his return was low.

24.  As to state protection, the Board found from extensive, fully-referenced country of origin information (“COI”) that reasonable state protection was available in India should the applicant need it.

25.  Further, the Board did not find it was unduly harsh to expect the applicant, being an adult male with experience working abroad and adequate education, to relocate to, say, Delhi, if he continued to be fearful of living in his home village.

26.  The Board thus concluded that the applicant failed to establish his claim for non-refoulement protection on all the applicable grounds under the USM.

27.  The assessment of evidence, COI and risk of harm was primarily within the sole ambit of the Board.  The Board was entitled to come to its own conclusion.  The applicant’s alleged danger had been fully assessed but rejected by the Board.  This court finds nothing wrong or unreasonable in the way the Board reached its decision. 

28.  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. 

29.  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

30.  For reasons aforesaid, the Leave Application is dismissed.

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