KARAMJIT SINGH AND OTHERS v. TORTURE CLAIMS APPEAL BOARD

HCAL 388/2020

[2026] HKCFI 3040

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 388 of 2020

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 1st and 2nd applicants and counsel for the 3rd and 4th applicants in open court;

1.  On this court’s own motion, the name of the 3^rd applicant be amended to “Hans Satveer Singh (a minor) by Karamjit Singh, his next friend”, the name of the 4^th applicant be amended to “Karamjit Singh Garry Singh (a minor) by Karamjit Singh, his next friend”, the name of the putative respondent be amended to “Torture Claims Appeal Board”, “Director of Immigration” be added as the putative interested party, and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 25 February 2020”.

2.  Leave granted to the 1^st, 2^nd, 3^rd and 4^th applicants to apply for judicial review in respect of the Torture Claims Appeal Board’s decision dated 25 February 2020.

3.  The applicants are directed to issue an originating summons for the intended judicial review on or before 10 June 2026 pursuant to Order 53, rule 5(5) of the Rules of the High Court.

4.  The 3^rd and 4^th applicants’ costs in the application for leave to apply for judicial review be reserved.

5.  The 3^rd and 4^th applicants’ own costs in the application for leave to apply for judicial review be taxed in accordance with the Legal Aid Regulations.

Observations for the applicants:

The Leave Application

1.  By way of Form 86 dated and filed on 12 March 2020, the applicants applied for leave to apply for judicial review (“the Leave Application”) in respect of two decisions as follows:-

(1)  “The Decision of the Director of Immigration dated 28^th December 2017”; and

(2)  “The Decision of the Adjudicator dated 25^th February 2020”.

2.  The applicants’ claims for non-refoulement protection were first assessed but rejected by the Director of Immigration (“the Director”) by way of his decision dated 28 December 2017 (“the Director’s Decision”). The applicants’ appeal/petition against the Director’s Decision was refused by the Torture Claims Appeal Board (“the Board”) by its decision dated 25 February 2020 (“the Board’s Decision”).

3.  It is clear that the first decision mentioned in Form 86 was the Director’s Decision and the second one was the Board’s Decision.

4.  However, as acknowledged by counsel for the 3^rd and 4^th applicants, the Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali [2018] HKCA 549). Thus, the Leave Application should be in respect of the Board’s Decision only. The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000388_2020_files/the_Board's_Decision.pdf

5.  The Board decided that the applicants’ application for non-refoulement protection was not made out on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board refused the applicants’ appeal/petition against the Director’s Decision and confirmed the same, which rejected their claims for non-refoulement protection.

Amendments

6.  The applicants are members of a family in which the 1^st applicant is the father, the 2^nd applicant is the mother and the 3^rd and 4^th applicants are their sons. The 3^rd applicant was born in India on 28 March 2013, while the 4^th applicant was born in Hong Kong on 10 December 2014. Hence, the 3^rd and 4^th applicants are both minors.

7.  The 3^rd and 4^th applicants were granted legal aid on 6 November 2025 and are legally represented in the Leave Application. Despite being legally represented, the 3^rd and 4^th applicants did not apply to amend Form 86.

8.  Counsel for the 3^rd and 4^th applicants also confirmed at the hearing before this court on 21 May 2026 that the 3^rd and 4^th applicants would not file any further supporting affirmation but rely on the 1^st applicant’s affirmation dated 12 March 2020, including the grounds for the intended judicial review annexed thereto, in the Leave Application.

9.  The applicants’ Form 86 contains a number of mistakes. As there was no application to amend Form 86, this court will deal with them on its own motion. First, the 3^rd and 4^th applicants are both minors and represented by their father, ie the 1^st applicant, as their next friend. Hence, their names as appeared in Form 86 should reflect the same.

10.  Secondly, the 4^th applicant’s name was spelt incorrectly in Form 86.

11.  Thirdly, the applicants named the Director and “The Adjudicator of the Non-refoulement Claims Petition office appointed to determine the Applicant’s Petition” as the putative respondents, and did not name any putative interested party in Form 86.

12.  In fact, the adjudicator was only making the Board’s Decision in her capacity as a member of the Board. As only the Board’s Decision should be the subject matter of the Leave Application, only the Board should be named as the putative respondent, and the Director should be named as the putative interested party.

13.  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.

14.  Fourthly, as aforesaid, the decision in respect of which relief is sought should be the Board’s Decision, instead of the two decisions as described in Form 86.

15.  Thus, on this court’s own motion, the name of the 3^rd applicant is amended to “Hans Satveer Singh (a minor) by Karamjit Singh, his next friend”, the name of the 4^th applicant is amended to “Karamjit Singh Garry Singh (a minor) by Karamjit Singh, his next friend”, the name of the putative respondent is amended to “Torture Claims Appeal Board”, “Director of Immigration” is added as the putative interested party, and the decision in respect of which relief is sought is amended to “Torture Claims Appeal Board’s decision dated 25 February 2020”.

The applicants’ case

16.  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.

17.  In sum, the applicants claimed for non-refoulement protection because if refouled to India, they would be harmed or killed by the 2^nd applicant’s family, particularly the 2^nd applicant’s younger brother, as the 1^st and 2^nd applicants married without the consent of and against the wishes of the 2^nd applicant’s family, and the 1^st and 2^nd applicants’ families had a different social status.

Oral hearing

18.  The applicants requested for an oral hearing of the Leave Application and their case was heard on 21 May 2026.

19.  As aforesaid, the 3^rd and 4^th applicants were granted legal aid on 6 November 2025. They were represented by counsel at the hearing.

20.  Although counsel for the 3^rd and 4^th applicants had submitted written submissions before the hearing, she confirmed at the hearing that the 3^rd and 4^th applicants would only rely on two grounds for the intended judicial review, namely: (1) the Board had failed to separately assess the 3^rd and 4^th applicants’ claims from their parents’ claims; and (2) there was no legal representation for the 3^rd and 4^th applicants before the Board.

21.  The 1^st and 2^nd applicants did not put forward any further grounds to challenge the Board’s Decision in respect of their own claims at the hearing.

Grounds for judicial review

22.  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).

23.  The applicants did not advance any ground for the intended judicial review in their Form 86. All the applicants relied on the document with the title “Grounds on which Relief is sought” annexed to the 1^st applicant’s affirmation dated 12 March 2020 as their grounds for the intended judicial review. However, as aforesaid, counsel for the 3^rd and 4^th applicants confirmed at the hearing before this court that they would rely only on the two grounds mentioned above.

Discussion

24.  This court will first deal with the Leave Application in respect of the 3^rd and 4^th applicants. At the time of the Board’s hearing, the 3^rd and 4^th applicants were both minors at a very tender age, ie the 3^rd applicant was less than 7 years old and the 4^th applicant was less than 5 years old.

25.  As can be seen from the Board’s Decision, the Board did not assess the 3^rd and 4^th applicants’ risks separately from the 1^st and 2^nd applicants’ case at all. There was no discussion by the Board of the needs and risks specific to the 3^rd and 4^th applicants, both being minor of tender age, after the Board found the claims as advanced by their parents, ie the 1^st and 2^nd applicants, to be incredible.

26.  As held by the Court of Appeal in Fabio Arlyn Timogan and Ors v Evan Ruth and Anor [2020] HKCA 971:-

“Even if the claims were based on the same set of primary facts, it would be an error of law if the decision-maker simply decided all the claims as if they were one composite claim without giving separate consideration to the personal circumstances of each claimant separately. It does not necessarily follow from the dismissal of the claim by a parent that the children’s claims could be dismissed without further consideration of their personal situations”.

27.  Thus, the Board has clearly committed an error of law when it failed to give separate consideration to the 3^rd and 4^th applicants’ claims and their personal circumstances in the Board’s Decision. In fact, when the Board found that the 1^st and 2^nd applicants’ marriage was not credible, it would mean that the 3^rd and 4^th applicants were born out of wedlock. The Board should have considered their risks for being illegitimate children when they were refouled to India, but it did not do so at all.

28.  Moreover, the case of Fabio, supra, also held that when one is dealing with children claimants of tender age (say for those younger than 12 years old), serious consideration should be given to have a lawyer assigned by the Duty Lawyer Scheme to represent the children in the Board hearing notwithstanding the rejection of the claims by the Director, as they are unlikely to be able to make decisions on how their claims should be presented before the Board or to make meaningful submissions on their own behalf.

29.  Thus, the lack of legal representation for the 3^rd and 4^th applicants before the Board could be an arguable ground for the intended judicial review too, as it might be procedurally unfair to them.

30.  This court is therefore of the view that the 3^rd and 4^th applicants’ intended judicial review is reasonably arguable. Leave should therefore be granted to the 3^rd and 4^th applicants to apply for judicial review in respect of the Board’s Decision.

31.  As to the 1^st and 2^nd applicants’ case, the Board found multiple inconsistencies in their accounts. Coupled with their inability to give relatively consistent evidence about matters purely within their personal knowledge, the Board did not find them to be credible witnesses. The Board found that they had fabricated and concocted their evidence to advance a claim for non-refoulement protection and that they were not harmed or threatened by the 2^nd applicant’s family who disapproved of their marriage. The Board was of the view that the 1^st applicant’s instruction to the 2^nd applicant during the hearing that she should tell the Board he had had an operation and could not remember things, and the 1^st applicant’s subsequent acknowledgement that he had not in fact had any such operation, were clear indications that they were not telling the truth.

32.  Thus, the Board found that they would not be at risk of harm from the 2^nd applicant’s family should they return to India.

33.  However, this court finds that there could be irrationality in the Board’s conclusion that the 1^st and 2^nd applicants (and the 3^rd and 4^th applicants) were not at risk of harm from the 2^nd applicant’s family upon refoulement.

34.  The relationship between the 1^st and 2^nd applicants, regardless of whether they were legally married, was established by fact, especially when they had already had two sons, namely the 3^rd and 4^th applicants. The Board did not reject the evidence that the 1^st and 2^nd applicants were from a different social status and were de facto partners. In fact, when they were not legally married, but eloped to Hong Kong and living together as husband and wife, the situation should be worse than they were legally married.

35.  As can be seen from paragraph 46 of the Board’s Decision, the Board found from country of origin information that “Acceptance of marriages outside of castes or religion, or even of marriage partners not chosen by the family, depended heavily on individual family beliefs. Some families, particularly in urban areas, are more accepting, whereas others are extremely conservative and do not allow their children to choose spouses. In some cases the families of intending marriage partners may perpetrate violence against them.”

36.  In paragraph 47 of the Board’s Decision, the Board also found that “It is therefore possible that, if the Appellants married without permission, the second Appellant’s family, who it is said hold a higher socio-economic position than the family of the first Appellant, may have strongly objected to their relationship to the point of violence.”  However, the Board went on to say that it did not accept that the 1^st applicant was subjected to harm or threats as claimed.

37.  This court is of the view that the Board’s refusal to accept that the 1^st applicant was subjected to harm or threats as claimed is rather irrational. It is clearly contradictory to its finding that the 2^nd applicant’s family “may have strongly objected to their relationship to the point of violence”.

38.  Whether or not the 1^st and 2^nd applicants were legally married, their relationship could have led to violence from the 2^nd applicant’s family which opposed to their relationship. In fact, if the 1^st and 2^nd applicants were not legally married, their children, ie the 3^rd and 4^th applicants, would be illegitimate children. This would only add to their risks upon refoulement.

39.  Thus, this court is of the view that the Board’s conclusion that the 1^st and 2^nd applicants would not be at risk of harm from the 2^nd applicant’s family should they return to India, could be flawed for being irrational.

40.  This irrationality in the Board’s finding is a sufficient reason for the 1^st and 2^nd applicants’ case to be arguable. It is therefore unnecessary for this court to discuss the grounds stated in the document with the title “Grounds on which Relief is sought” annexed to the 1^st applicant’s affirmation dated 12 March 2020 and relied on by the 1^st and 2^nd applicants.

41.  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. In this court’s view, it is reasonably arguable that there could be an error of law, procedural unfairness and/or irrationality in the Board’s Decision as aforesaid. Hence, leave should be granted to the 1^st and 2^nd applicants to proceed with their intended judicial review as well.

Conclusion

42.  For reasons aforesaid, leave is granted to the 1^st, 2^nd, 3^rd and 4^th applicants to apply for judicial review in respect of the Board’s Decision.

43.  The applicants are directed to issue an originating summons for the intended judicial review on or before 10 June 2026 pursuant to Order 53, rule 5(5) of the Rules of the High Court.

44.  As the 3^rd and 4^th applicants are legally aided, this court further order that their costs be reserved and their own costs be taxed in accordance with the Legal Aid Regulations.

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