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HCAL 3545/2019
[2025] HKCFI 5041
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3545 OF 2019
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BETWEEN
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Gurdev 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 29 November 2019, 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 22 November 2019 (“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/2019/HCAL003545_2019_files/the_Board's_Decision.pdf
2. The Board found that the applicant’s claims for non-refoulement protection were not made out 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 30 July 2018, which rejected the applicant’s non-refoulement claim.
Amendments
3. The applicant named the Board as both the putative respondent and the putative interested party in Form 86 but spelt the Board’s name wrong.
4. In fact, the Board should only be the putative respondent and the Director should be the putative interested party.
5. Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and to amend the name of the putative interested party to “Director of Immigration”.
The applicant’s case
6. 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.
7. In sum, the applicant claimed for non-refoulement protection because if returned to India, Balbir Singh (“Balbir”), his son and their underlings would harm the applicant as Balbir wanted the farmland of the applicant’s father to expand his factory.
Oral hearing
8. The applicant requested for an oral hearing of the Leave Application. His case was heard on 7 August 2025.
9. At the hearing, when this court asked the applicant to provide the grounds for his intended judicial review, he replied that he did not have anything to tell this court save that he relied on what was stated in his supporting affirmation dated 29 November 2019.
Grounds for judicial review
10. 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).
11. However, the applicant failed to advance any grounds for his intended judicial review in Form 86, nor in his supporting affirmation. He merely stated in his supporting affirmation that he was not satisfied with the Board’s Decision because his life was not safe in his own country.
12. As aforesaid, the applicant did not advance any valid ground for the intended judicial review at the oral hearing before this court either.
Discussion
13. 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).
14. Thus, 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.
15. In assessing the appeal by the applicant, the Board held an oral hearing on 17 October 2019. The applicant was present and was given the chance to present his case to the Board in person.
16. As can be seen from the Board’s Decision, the Board gave very full and detailed reasoning for its conclusion that the applicant’s claims were not credible. The matters that raised the Board’s concerns about the credibility of the applicant’s claims were laid out in paragraphs 46-52 of the Board’s Decision. These concerns cumulatively led the Board to conclude that the applicant’s claims regarding the land dispute between his father and Balbir were not credible.
17. The Board did not accept that the applicant was involved in any physical altercation with Balbir’s son, nor was he attacked by Balbir, his son and their associates when he was on his way home from the market. The Board therefore did not accept that the applicant moved to his uncle’s home prior to leaving India, once Balbir allegedly learned of his whereabouts. The Board did not accept that the applicant’s father was beaten by Balbir because the applicant had run away. The Board was satisfied that the applicant’s claims regarding the harm he faced in India from Balbir, his son and their associates were not credible and as such he did not face any harm because of the alleged land dispute.
18. Despite its finding that the applicant did not face any of the proscribed forms of harm, the Board nevertheless assessed the viability of internal relocation for the applicant on a discrete basis. The Board found that it would not be unduly harsh or unreasonable for the applicant to relocate to another part of India, outside his home area of Badilla village such as District Samba, if he needed to.
19. Thus, the applicant’s alleged danger in returning to India was fully assessed but rejected by the Board.
20. The finding of facts was solely within the ambit of the Board. The Board was entitled to make its decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.
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 23rd day of October 2025
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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 his 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: 23 October 2025
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: 23 October 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 12918/18/8/188/IN2569
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 2530/18
(formerly RBCZ 11966/16) (T9I65)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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