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HCAL 410/2021
[2026] HKCFI 1458
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 410 OF 2021
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BETWEEN
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Gurtej Singh |
Applicant |
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and |
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Torture Claims Appeal Board |
Putative |
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Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for leave to apply for judicial review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)
Following:
Order by Deputy High Court Judge Michael WONG:
1. On this court’s own motion, 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 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 23 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 8 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/HCAL000410_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 confirmed the decision of the Director of Immigration (“the Director”) dated 27 September 2018, which rejected the applicant’s non-refoulement claim.
Amendments
3. In Form 86, the applicant named the Board and Immigration Department as both the putative respondents and the putative interested parties, when only the Board should be named as the putative respondent and only the Director should be named as the putative interested party.
4. This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and the name of the putative interested party to “Director of Immigration”.
The applicant’s case
5. 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.
6. In sum, the applicant claimed for non-refoulement protection because if refouled to India, he would be harmed or killed by one of his uncles, Jasvir Singh, and his cousin as the applicant had disputes with them when he worked on his father’s farmland adjacent to the uncle’s.
Oral hearing
7. The applicant requested for an oral hearing and his case was heard on 24 February 2026.
8. When this court asked the applicant for the grounds of his intended judicial review, the applicant merely said that he wanted this court to give him some more time and if not, he asked this court to give him the judgment, but he had nothing else to say.
Grounds for judicial review
9. 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).
10. The applicant did not identify any grounds for the intended judicial review in Form 86, nor in his supporting affirmation dated 23 March 2021. He merely stated in the affirmation that he would like to reject and review the Board’s Decision as they disregarded his dangerous situation.
11. As aforesaid, the applicant did not advance any grounds at the oral hearing before this court either.
Discussion
12. 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).
13. 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.
14. In assessing the applicant’s appeal/petition, the Board held an oral hearing on 16 December 2020 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 and refused to even consider to answer any of the Board’s questions after the Board had told him the questions to be asked. The Board then proceeded to determine the applicant’s appeal/petition based on all the available evidence before it.
15. The Board found that the information given by the applicant to the Director were a manifestation of inconsistencies, inventions and implausibility. The applicant’s assertions as detailed in paragraphs 103(1) – (8) regarding his uncle, his cousin, their assaults on him and his subsequent hiding from them, were rejected in their totality. The Board had given detailed reasons in paragraphs 104 – 109 of the Board’s Decision as to why it rejected the applicant’s claims and came to the conclusion that there were serious credibility problems such that it was unwilling to attach any credence to them.
16. The Board found that the applicant had not suffered any severe pain and suffering as defined in section 37U of the Immigration Ordinance or reached a minimum level of severity. The perceived harm from the uncle and the cousin was unrelated to the state and did not amount to persecution.
17. As to state protection, the Board found that, even if the applicant’s alleged harms or threats of harm or death had some credence, there was no evidence to show that the state was unwilling or unable to provide protection to the applicant. The Board found from extensive, fully-referenced country of origin information (“COI”) that reasonable state protection was available in India.
18. Further, the Board found no objective and reliable evidence to show that the applicant’s uncle and cousin were able to locate him within the mass population in any of the 10 largest cities in India or anywhere outside Punjab. The Board found that the applicant, being an able-bodied adult with 12 years of education and work experience as a machine operator and a farmer, could reasonably live without fear of the alleged harms and undue hardship if he relocated to one of the 10 largest cities in India.
19. The Board thus concluded that the applicant failed to establish his claim for non-refoulement protection on all the applicable grounds under the USM.
20. 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. If the applicant is seeking to challenge the Board’s finding of facts, it is not permissible in an application for judicial review. This court finds nothing wrong or unreasonable in the way the Board reached its decision.
21. 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.
22. 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
23. For reasons aforesaid, the Leave Application is dismissed.
Dated the 11th day of March 2026
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( Irene LEE )
for Registrar, High Court
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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
Notes for the applicant:
If leave has been granted, the applicant or the applicant’s solicitors must:
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a) serve on the respondent 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 applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent/Handed to the applicant/the applicant’s solicitors
on: 11 March 2026
Applicant’s ref. no:
Nil |
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Sent/Handed to the putative respondent / the putative respondent’s solicitors / such putative interested parties as may be directed by the Court / the putative interested parties’ solicitors on: 11 March 2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 13835/18/10/177/IN2732
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 3229/18
(Formerly RBCZ 11566/15) (PSO)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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