HARJINDER SINGH AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

Application for Leave to Apply for Judicial Review

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

Following:

1.   Leave to apply for Judicial Review be refused.

2.   Non-compliance with Order 80, rule 2 of the Rules of the High Court in these proceedings be treated as a mere irregularity without rendering the application of the elder son, the daughter or the younger son a nullity.

Observations for the Applicant:

THE APPLICATION

1.  The applicants are a family.  The 1^st applicant is the father (“the father”); the 2^nd applicant is the mother (“the mother”); the 3^rd applicant is the elder son, aged 13 (“the elder son”); the 4^th applicant is the daughter, aged 10 (“the daughter”); and the 5^th applicant is another son, aged 4 (“the younger son”).  They are illegal immigrants, having come to Hong Kong as visitors, but overstayed without the permission of the Director of Immigration (“the Director”).

2.  They lodged a claim for non-refoulement, which the Director refused. They appealed to the Torture Claims Appeal Board (“the Board”).  By Decision dated 19 May 2025 (“the Board’s Decision”), the Board dismissed their appeal.

3.  The applicants jointly apply for leave to apply for judicial review of the Board’s Decision.  Their application relies upon the facts of the father.

4.  The applicants did not ask for a hearing.  Having considered the facts of the case, this Court did not consider necessary to call upon the applicants for clarification of any issues.  I shall deal with their joint application on the papers.

5.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicants                                                                                     

6.  The applicants are nationals of India.

7.  The applicants lodged a non-refoulement claim, on the basis that, if refouled, they will be harmed or killed by the father’s brother, (“the uncle”), due to a dispute over a garage.

8.  Details of the facts are set out in the Board’s Decision. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001299_2025_files/the_Board's_Decision.pdf.

The Director’s Decision

9.  The Director considered the applicants’ claims in relation to the following risks:

a.   risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.   risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.   risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.   risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

10.  By way of the Director’s Decision dated 13 February 2025 (“the Director’s Decision”), the Director dismissed their claims on all applicable risks because they were unsubstantiated.

The Board’s Decision

11.  The applicants appealed the Director’s Decision to the Board.  On 13 May 2025, the Board conducted an oral hearing for their appeals.  The father had given evidence and answered the Board’s questions.

12.  Having considered the evidence, the Board made the findings below.

(1)   The father accepted that the dispute does not involve the state.  [38]

(2)   There were inconsistencies and contradictions in the father’s evidence, which undermined his evidence.  [45] For examples, see [46]-[47] & [49].  He was unable to offer any satisfactory explanation.  [48] & [50]

(3)   Even if the father were truly afraid of the uncle, there is no evidence to show that:

i.   the uncle would harm or kill the applicants in India today;

ii.   the applicants face risk across India;

iii.   the applicant suffered injuries to the required severity; and

iv.   the state of India is unwilling to help the applicants.  [52]

(4)   Insofar as separate consideration of the children (A3-A5), there is no reason why the applicants could not return to live in India and stay safely in various places.  [65]-[69]

(5)   State protection will be available to them.  [78]

(6)   Internal relocation is viable.  [107]

13.  For the reasons above, the Board dismissed their appeal and confirmed the Director’s Decision. 

Application for leave to apply for judicial review

14.  The applicants filed Form 86 on 6 June 2025 for leave to apply for judicial review of the Board’s Decision.

15.  In support of their application, the applicants have not raised any specific reason to challenge the Board’s Decision.

DISCUSSION

16.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicants’ appeal.  The Court will not usurp the fact-finding power vested in the Director and the Board.  See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

17.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

18.  The decisions of the Court of Appeal in Fabio Arlyn Timogan, Salaudin Rabia & Salaudin Faheem v Evan Ruth, Esq, Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2020] HKCA 971 and Re: Jasvir Singh & Ors [2021] HKCA 53 are taken on board for consideration.

19.  The Board had separate consideration for the children in this case.  It came to the conclusion that they would not be subjected to any of the applicable risks if they return to India with their parents.  I am satisfied that the Board had applied advanced standards of fairness in its assessment of the applicants’ appeal.

20.  There is no reason for the Court to interfere with the Board’s Decision.

21.  The applicants therefore fail to show that there is any realistic prospect of success in their proposed judicial review.

DISPOSITION

22.  I refuse to grant leave to the applicants to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss their joint application.

23.  I shall treat non-compliance with Order 80, rule 2 of the RHC in these proceedings as a mere irregularity without rendering the application of the elder son, the daughter or the younger son a nullity.

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