Jaibir 1st Applicant Sidhu Charnjeet Kaur 2nd Applicant Jaibir Aariv Singh by Jaibir, his next friend, Jaibir, Sidhu Charnjeet Kaur, Jaibir Aariv Singh by Jaibir, his next friend, consideration of the documents and oral submissions by the 1st and 2nd applicants and counsel for 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
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HCAL 412/2020 [2026] HKCFI 133 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 412 of 2020
Application for leave to apply for judicial review NOTIFICATION of the Judge’s decision (Order 53, rule 3) Following:
Observations for the applicants: The Leave Application 1. By way of Form 86 dated and filed on 16 March 2020, the applicants applied for leave to apply for judicial review in respect of a decision dated 11 March 2020 without identifying the decision-maker. 2. The applicants are members of a family in which the 1st applicant is the father, the 2nd applicant is the mother and the 3rd applicant is their son. The 3rd applicant was granted legal aid on 1 September 2025 and is legally represented. 3. By way of an ex parte summons dated 21 November 2025, the 3rd applicant applied to amend Form 86. At the oral hearing before this court on 3 December 2025, both the 1st and 2nd applicants confirmed that they had no objection to amend Form 86 as proposed by the 3rd applicant. 4. Leave was thus granted to the 3rd applicant to amend Form 86 as per the draft attached to the said ex parte summons, save that the title of the 3rd applicant be changed to “Jaibir Aariv Singh by Jaibir, his next friend”. 5. By way of the Amended Form 86, the 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 11 March 2020 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:- 6. The Board decided that the applicants’ claim for non-refoulement protection were not made out on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board confirmed the decision of the Director of Immigration (“the Director”) dated 25 October 2018, which refused their claims for non-refoulement protection. Amendment 7. In the Amended Form 86, the applicants named “Torture Claims Appeal Board/ Non-refoulement Claims Petition Office” as the putative respondents, when only the Board should be so named. 8. 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. 9. Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board”. The applicants’ case 10. 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. 11. In sum, the 1st and 2nd applicants claimed for non-refoulement protection because if refouled to India, they would be at risk of being harmed by their respective parents as they married without their families’ consent across religious and caste/ethnic lines. The 3rd applicant relied on his parents’ claims to claim non-refoulement protection. Oral hearing 12. The applicants requested for an oral hearing of the Leave Application and their case was first heard on 24 June 2025. 13. After this court explained to the applicants that the 3rd applicant is a minor and he should have legal representation under Order 80, rule 2 of the Rules of High Court, the 1st applicant expressed that he would apply for legal aid for the 3rd applicant. 14. The hearing was thus adjourned and the applicants were directed to apply for legal aid in respect of the 3rd applicant on or before 8 July 2025. 15. As aforesaid, the 3rd applicant was granted legal aid on 1 September 2025. He was represented by counsel at the resumed hearing on 3 December 2025. 16. Apart from confirming that they had no objection to the draft Amended Form 86 proposed by counsel for the 3rd applicant, the 1st and 2nd applicants did not put forward any grounds to challenge the Board’s Decision in respect of their own claims. 17. Counsel for the 3rd applicant had in fact advanced two grounds against the Board’s Decision, namely (1) Error of Law – Failure to separately assess the claim of the 3rd applicant; and (2) Irrationality: Breach of Tameside duty: Failure to conduct a proper or sufficient inquiry. 18. At the hearing, counsel confirmed that the 3rd applicant would only rely on Ground (1) in the Leave Application. Grounds for judicial review 19. The applicants are 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). 20. The 1st and 2nd applicants did not advance any ground for their intended judicial review in the Amended Form 86, nor in their joint affirmation dated 16 March 2020. As aforesaid, the 1st and 2nd applicants did not advance any ground for their intended judicial review at the oral hearing on 3 December 2025 either. 21. Since counsel for the 3rd applicant has confirmed that the 3rd applicant would only rely on Ground (1), which will be discussed below, it is no longer necessary for this court to deal with Ground (2) as aforesaid. Discussion 22. This court will first deal with the Leave Application in respect of the 3rd applicant. This court notes that at the time of the Board’s Decision, the 3rd applicant was a minor at a very tender age, ie less than 2 years old. 23. In Ground (1) as advanced by counsel for the 3rd applicant, he challenged that the Board committed an error of law in failing to separately assess the 3rd applicant’s claim. 24. As can be seen from paragraphs 80 and 81 of the Board’s Decision, the Board found that the 3rd applicant was stateless, albeit with the potential to obtain Indian nationality by descent on account of his parents’ nationality. Consequently, the Board assessed the 3rd applicant’s claims against India on the basis that he had a contingent or inchoate right to the nationality of that country. 25. However, as submitted by counsel for the 3rd applicant, the issue of the 3rd applicant’s statelessness was not fully canvassed and was not considered meaningfully or at all by the Board. The 1st and 2nd applicant had expressly informed the Board that they did not know about the requirement that they had to apply to the Indian Consulate to have the 3rd applicant’s birth registered and even if they knew about it, they would not have done so for reasons of safety. Moreover, any potential registration is not as of right but subject to the permission of the Indian government. Thus, it could be wrong for the Board to assume that the 3rd applicant has a contingent or inchoate right to Indian nationality and to assess his claims against India. 26. Apart from stating that it had assessed the 3rd applicant’s claims against India on the basis that he had a contingent or inchoate right to Indian nationality, the Board did not in fact assess the risk of the 3rd applicant separately from the 1st and 2nd applicants’ case. As can be seen from the Board’s Decision, there was no discussion of the needs and risks specific to the 3rd applicant by the Board at all, especially when he was found to be a stateless child. 27. As held by the Court of Appeal in Fabio Arlyn Timogan and Ors v Evan Ruth and Anor [2020] HKCA 971:-
28. Thus, the Board has clearly committed an error of law when it failed to give separate consideration to the 3rd applicant’s claim and his personal circumstances in the Board’s Decision. 29. In this regard, leave should be granted to the 3rd applicant to apply for judicial review in respect of the Board’s Decision concerning his own case. 30. 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). 31. 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 1st and 2nd applicants for the intended judicial review. 32. It is evident from the Board’s finding of facts as laid out in paragraphs 85 to 92 of the Board’s Decision that the Board found both the 1st and 2nd applicants to be forthright witnesses. The Board accepted most of their claims as to past events and that the uncle of the 2nd applicant did pose some appreciable risk of serious or significant harm to the applicants outside of Punjab, if information as to their whereabouts came to his attention. 33. As stated in paragraph 96 of the Board’s Decision, the Board was also not satisfied that effective state protection would be available to the 1st and 2nd applicants in Punjab in accordance with international standards. 34. The Board rejected the applicants’ claim for non-refoulement protection only based on its finding that internal relocation for the applicants was both viable and not unduly harsh. However, this court finds that the Board’s conclusion regarding internal relocation might not be well-founded. 35. The Board based its finding on the reasonableness of internal relocation mainly on the educational levels of the 1st and 2nd applicants as well as the 1st applicant’s work experience. However, the Board did not consider the harshness that the couple would face if they were to return to India with the 3rd applicant, a stateless child. 36. Thus, the Board’s conclusion that the 1st and 2nd applicants’ risks could be avoided by internal relocation could arguably be flawed. 37. 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 it is reasonably arguable that the Board had committed some errors of law and/or was irrational in its findings as aforesaid. Hence, leave should be granted to all the applicants to proceed with the intended judicial review. Conclusion 38. For reasons aforesaid, leave is granted to the 1st, 2nd and 3rd applicants to apply for judicial review in respect of the Board’s Decision. 39. The applicants are directed to issue an originating summons for the intended judicial review on or before 21 January 2026 pursuant to Order 53, rule 5(5) of the Rules of the High Court.
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
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