SUKHDEV SINGH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 742/2021

[2026] HKCFI 1406

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 742 of 2021

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of documents only;          or
	consideration of documents and the Applicant being absent  in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 24 May 2021 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 16 April 2021 (the “Decision”) dismissing his appeal against the decision of the Director in his Notice of Decision dated 17 July 2020 (the “Notice”) refusing his application for non-refoulement protection.

2.  The Applicant had requested an oral hearing. A hearing on 11 February 2026 was scheduled and a notice of hearing had been sent to him by post to his address as stated in his Form 86 and to his address as discovered from the Immigration Department on 11 December 2025. Neither of the notice of hearing has been returned through the post. The Applicant had never informed the court of any change of address since filing his Form 86. On the afternoon of 10 February 2026, a court staff managed to contact him by telephone to remind him of the hearing. But he did not appear at the hearing. The Court was satisfied that the notice of hearing had been duly served on the Applicant and that he had been successfully reminded of the hearing. The Court had tried its best endeavour to bring the hearing to his notice but he deliberately chose not to appear. In the notice of hearing, he had been warned that if he did not appear at the hearing, he would be deemed to have waived his right to make oral submissions at the hearing and the Court will deal with his leave application according to the paper already placed before the Court. Having considered the nature of the application and issues raised, the Decision, the papers, the applicable legal principles and all the circumstances, the Court considered that the leave application may be justly determined on paper without an oral hearing.

Background

3.  The Applicant is an Indian national, now aged 30. He sneaked into Hong Kong from Mainland China on 16 January 2020. He was arrested by the police on 21 January 2020 and then he lodged a non-refoulement claim on 24 January 2020. In due course, his claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. His claim was rejected by the Director’s Notice. His appeal against the Notice was dismissed by the Board’s Decision. He now applies for leave to apply for judicial review of that Decision.

The Applicant’s case

4.  The Applicant’s personal background, the basis of his claim, the arguments he advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision. These will not be repeated here. The hyperlink to the Board’s Decision is included below[5] for reference. In gist, he claims he will be harmed or killed by the village head because of a land dispute, if returned to India. His case is that his father inherited land from his grandfather, but the land was never registered in his grandfather’s name because his grandfather was uneducated. In his non-refoulement claim form (“NCF”), he claimed he was beaten by the village head with sticks in August 2019 and shot at in November 2019, which prompted him to flee to his aunt’s village in Chola and then to take refuge in the Golden Temple at Amritsar. In January 2020, he flew from India to China and from there he sneaked into Hong Kong.

5.  At the hearing before the Board, he said his father bought three killa (ie acres) of land, upon which he grew wheat and rice. The land is registered in his father’s name at the court in Tarn Taran where he lived. When confronted with the discrepancy in his NCF, he reversed his evidence and said he did not know when his grandfather died or when his father became the registered owner of the land. He could not remember how long he stayed in Chola or how long he stayed in Amritsar. He was not able to say when the legal dispute over the land started, the case reference number or otherwise provide any paper about it. When asked about why he had not produced any paper about the legal dispute, he replied that he “forgot”.

The finding of the Board

6.  The Board found the Applicant’s evidence literally incoherent and it was very difficult to elicit a meaningful answer from him. He was unable to remember how his father came into possession of the land or when, when the dispute over the land started, the status of the legal dispute and “forgot” to find any evidence that the legal dispute existed.

7.  In his NCF, he said he was attacked twice. In his testimony before the Board, he said he had been attacked three times, but could give no particulars. When asked which version was true, he was unable to reply. In view of the state of his evidence, the Board found as a fact that the Applicant did not have a land dispute with the village head and was not attacked. The Board attached no credence at all to his claims.

8.  On such evidence, the Board could not be satisfied that the Applicant had proved his entitlement to protection under any of the applicable grounds under the USM. Hence, it dismissed his appeal against the Director’s Notice.

Legal principles applicable to judicial review

9.  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[6].

Grounds for judicial review

10.  The Applicant did not advance any grounds for judicial review in his Form 86 or his supporting affirmation. Despite he had been notified and reminded of the hearing, he did not appear. He forwent his last opportunity to inform the Court of his grounds of application. In the absence of proper grounds or grounds with adequate particulars, the Court in an application for leave to apply for judicial review could only focus its attention on errors of law, procedural unfairness and irrationality in the Decision.

Overall scrutiny

11.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.

12.  The Board analysed the evidence carefully, tested it against common sense and inherent probability. It found the Applicant’s case incoherent, internally inconsistent and lacking in particulars. The Board was unable to attached any credence his claims. Having regard to the law applicable to non-refoulement protection, it came to the conclusion that the Applicant had failed to prove his entitlement to protection under any of the applicable grounds under the USM. On the evidence before the Board, it was open to the Board to come to such conclusion. Its findings are mixed findings of fact and of the law. Insofar as these are finding of the law, they are absolutely correct. Insofar as these are finding of fact, they are exclusively within the realm of the Board, which the Court in a judicial review will not interfere, save when such finding was made as result of error of law or procedural unfairness or irrationality in the Decision. The Court could detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant had failed to discharge his burden of proving his fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.

Conclusion

13.  For the above reasons, the Applicant’s leave application is refused.

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