ARSHDEEP SINGH v. TORTURE CLAIMS APPEAL BOARD

HCAL 1690/2021

[2026] HKCFI 3552

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1690 OF 2021

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 and oral submissions by the applicant in open court;

1.  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 14 November 2021 and filed on 14 December 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 13 August 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/HCAL001690_2021_files/the_Board's_Decision.pdf

2.  The Board found that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board upheld the decision of the Director of Immigration (“the Director”) dated 17 July 2020, which rejected his non-refoulement claim.

Late application

3.  By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant had to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made.

4.  However, the applicant filed Form 86 on 14 December 2021, which was 4 months after the Board’s Decision (made on 13 August 2021). The applicant was hence late for one month in making the Leave Application, and this court has to consider whether there is any good reason to extend the time for the applicant to make the Leave Application.

5.  As held in AW v Director of Immigration [2016] 2 HKC 393, the criteria for granting an extension of time are:

(i)  the length of the delay;

(ii)  the reason for the delay;

(iii)  the merits of the intended application; and

(iv)  any prejudice to the putative respondent and to public administration.

6.  The applicant did not make any application for extension of time and provided no explanation for the delay when he filed the Leave Application. At the oral hearing before this court on 11 June 2026, the applicant simply said that he did not receive the Board’s letter containing the Board’s Decision in time but could not recall exactly when he received it. He said that when he finally received it at home, he immediately made the Leave Application.

7.  A delay of one month is not insubstantial, and the explanation given by the applicant at the hearing is not satisfactory. If the applicant indeed received the Board’s Decision at home, the delay of post was inexplicable and he could not offer any reason for receiving the Board’s Decision late. More importantly, there is no merit in the intended judicial review as discussed below.

8.  Having considered the above criteria, this court is not prepared to grant any extension of time to the applicant to file the Leave Application. The Leave Application can therefore be dismissed on the ground of being made out of time alone.

9.  However, for the sake of completeness, this court will still examine the merits of the Leave Application.

The applicant’s case

10.  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.

11.  In sum, the applicant claimed for non-refoulement protection because if refouled to the India, he would be harmed or killed by his paternal uncles due to a family land dispute, and also by some unknown gangsters over the affairs of the Sri Guru Granth Sahib Satikar Committee (“the Committee”), of which the applicant was the president.

Oral hearing

12.  The applicant requested for an oral hearing of the Leave Application and his case was heard on 11 June 2026.

13.  When this court asked the applicant for the grounds of his intended judicial review, he merely replied that he was not satisfied with the Board’s Decision as his case was not well-considered by the Board. As he could not read English and he could not remember the content of the Board’s Decision, the hearing was stood down for the Board’s Decision to be interpreted to him. After the Board’s Decision was read to him, he added that the Board did not believe him as he could not provide any proof.

Grounds for judicial review

14.  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).

15.  The applicant did not provide any grounds for his intended judicial review in Form 86, nor in his supporting affirmation dated 14 December 2021.

16.  At the oral hearing before this court, the applicant merely said that his case was not well-considered by the Board, and the Board did not believe him because he could not provide any proof.

Discussion

17.  First of all, the applicant’s allegation at the oral hearing that his case was not well-considered by the Board was advanced without any particulars. He could not say why or how his case was not well-considered.

18.  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”. Thus, the applicant’s general complaint cannot help him at all.

19.  With regards to his allegation that the Board did not believe him, it is the applicant’s duty to substantiate his claim for non-refoulement protection. The finding of facts, including the assessment of evidence, is within the exclusive ambit of the Board as the primary decision-maker. The applicant’s case had been duly assessed but rejected by the Board. If he intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.

20.  Thus, none of the matters put forward by the applicant at the oral hearing amounts to any valid ground to challenge the Board’s Decision.

21.  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).

22.  Thus, the applicant cannot ask this court to re-assess his claims. Nevertheless, 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.

23.  In assessing the applicant’s appeal/petition, the Board held an oral hearing on 12 November 2020. The applicant was present at the hearing. Thus, the applicant did have a chance to present his case to the Board in person.

24.  As can be seen from the Board’s Decision, the Board had provided full and detailed reasoning in rejecting the applicant’s claim.

25.  The Board had laid out its material findings of fact of the applicant’s case in respect of all the applicable grounds under the USM in paragraphs 20 to 65 of the Board’s Decision, and it is not necessary to repeat the same here.

26.  In gist, the Board found that the applicant did not provide any concrete evidence of his disputes with his paternal uncles and the unknown gangsters. His dispute with his uncles was a civil/private one, and his dispute with the unknown gangsters due to the Committee’s affairs was also a personal dispute only. None of these two disputes were related to any Convention reasons. The applicant failed to establish a well-founded fear of both his uncles and the unknown gangsters. The injuries the applicant sustained as a result of two assaults were not so serious as to attain a minimum level of severity which required international protection.

27.  Even if the three incidents that the applicant claimed to have encountered did happen, the Board found that the applicant had only been assaulted once due to the family land dispute. He was not harmed or attacked by anyone because of the land dispute for more than 3.5 years subsequent to the attack before he left India. The Board also found that, given the extent of injuries and the lack of evidence that the unknown gangsters would hurt him again, the applicant’s claim that he would be hurt or killed by them upon his return to India had no basis.

28.  Moreover, the Board had gone through extensive, fully-referenced country of origin information (“COI”) and found that despite setbacks, there were reforms in India over the monition of police conduct and the protection of fundamental human rights. The Board was of the view that adequate state protection was available to the applicant in his country to protect him from the alleged attacks (if any) by his paternal uncles or some unknown gangsters.

29.  Thus, the Board concluded that the applicant was not entitled to non-refoulement protection on any of the applicable grounds under the USM.

30.  Although the Board did not make findings on the viability of internal relocation for the applicant, it is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that he qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997). In other words, internal relocation only arises if the applicant has established a real risk of persecution in his home area (see Gardi v SSHD [2002] 1 WLR 2755).

31.  As it is the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm and that state protection was available to him, it is not necessary for the Board to consider internal relocation.

32.  The finding of facts, including the assessment of evidence, COI and risk of harm, was solely within the ambit of the Board in dealing with the applicant’s appeal/petition. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

33.  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.

34.  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

35.  For reasons aforesaid, the Leave Application is dismissed for being made out of time and also for lack of merits.

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