THIND SUKHWINDER SINGH AND OTHERS 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 for the Applicants to apply for Judicial Review be refused; and

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 3^rd and 4^th Applicants’ application a nullity.

Observations for the Applicants:

THE APPLICATION

1.  The applicants are members of a family.  The first applicant is the father (“the father”).  The 2^nd applicant is the mother (“the mother”), the 3^rd applicant is the daughter, born in Hong Kong on 28 December 2016 (“the daughter”) and the 4^th applicant is the son, born in Hong Kong on 21 January 2018 (“the son”).  The parents act as the next of friends of the daughter and the son.

2.  The applicants jointly apply for leave to apply for judicial review of the Decision dated 4 June 2020 of the Torture Claims Appeal Board (“the Board’s Decision”).  Their joint application relies upon the facts of the parents.

3.  The applicants appeared before the Court on 11 March 2026.

4.  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                                                                                     

5.  The applicants are nationals of India.

6.  The applicants lodged a non-refoulement claim, on the basis that, if refouled, the parents will face an “honour killing” at the hands of their families because they formed a relationship with partners of whom the families disapproved for reasons of class and caste.  The mother was formerly married to another man in India.  The children’s cases rely upon the facts of their parents.

7.  Details of the facts are set out in the Board’s Decision.  See hyperlink. https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001162_2020_files/the_Board's_Decision.pdf

The Director’s Decision

8.  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”).

9.  By way of Notice of Decision dated 26 July 2028 (“Director’s Decision”), the Director assessed the applicants’ claims jointly on all applicable grounds and dismissed their claims on all applicable risks because it was unsubstantiated.

The Board’s Decision

10.  The applicants appealed the Director’s Decision to the Board.  On 24 April 2020, the Board conducted an oral hearing for their appeals.  The parents had given evidence and answered the Board’s questions.

11.  Having considered the evidence, the Board dismissed their appeal for the reasons that the parents’ evidence on the core facts of their case was rejected [16]-[18] and internal relocation is viable [30].  References of the Board’s findings are stated below.

“16. The Appellants’ evidence to the Board was extremely vague and unsubstantiated. They were unable to explain why they maintained open channels of communication, through which they could be traced, nor why they maintained a social media presence, through which they were traced to Singapore, against the background of two families and a husband who were apparently chasing them across India and the World.

17. The Appellants were unable to explain whether the second Appellant was divorced from her husband or not and when they had made complaints to the police and sought an Order of the High Court at Chandigarh. They were unable to explain why they could not produce any FIRs or Orders.

18. For these reasons, the Board is unwilling to attach any credence at all to the Appellants’ claim.”

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

Application for leave to apply for judicial review

13.  The applicants filed Form 86 on 11 June 2020 for leave to apply for judicial review of the Board’s Decision.

14.  In support of their application, the applicants have not raised any ground to challenge the Board’s Decision.

DISCUSSION

15.  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).

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

17.  Before me, the mother said that the Board’s Decision was not wrong.  I asked the parents if there were any child specific issues, which were not put to the Board for consideration because they were not legally represented.  The parents said that they had told the full story and put all the problems of their children if they return to India to the Board for its consideration.

18.  It is apparent that the applicants were not legally represented before the Board.  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 held that in such circumstances, it is incumbent upon the Board to see if there were any child-specific issues, which were not brought to the Board’s attention because of lack of legal representation for the minors, and to have separate consideration of the child specific issues as the minors are more venerable to the applicable risks than the parent.

19.  The Court of Appeal in Re: Jasvir Singh & Ors [2021] HKCA 53 further held:

“33. … if the court is satisfied the Board had achieved high standard of fairness in dealing with the minor’s claim consistently with the above propositions and there is no such underlying matter that may support minor specific non refoulement grounds which had not been advanced before the Board, it is open to the court to conclude that the minor’s intended judicial review is without any merit. In such a case, the court can dismiss his leave application notwithstanding that he has not been legally represented before the Board and in the judicial review leave application, treating the non-compliance with Order 80, rule 2 as a mere irregularity as explained in Zoraydah v Torture Claims Appeal Board [2020] HKCA 442, discussed in [57] of Fabio Arlyn Timogan .”

20.  It is obvious that the Board did not consider the children’s situations separately.  It will be for the Court to consider if such conduct will cause any injustice to the children or give rise to any reasons for judicial review of the Board’s Decision.  I will be guided by the decisions of the Court of Appeal.

21.  In Re: Luu Thi Hoa & Others [2024] HKCA 174, Hon Kwan VP and Cheung JA, 27 February 2024:

“17. In the present case, the 3^rd applicant’s claim is premised fundamentally and entirely on the 1^st applicant’s claim. In light of the Board’s rejection of the 1^st applicant’s evidence, the factual foundation of his claim failed. It follows from the rejection of the 1^st applicant’s claim that there is no basis to support the 3^rd applicant’s claim. Further, the Board had found that no threat was made to kidnap the children.

18.   We also agree with the Judge that on the materials available to the Court, they do not disclose any possible concern that there may be non refoulement grounds that relate specifically and solely to the 3^rd applicant.  In the circumstances, although the Board did not appear to have separately considered the 3^rd applicant’s claim (other than on the issue of kidnapping), we do not consider, having regard to the facts of this case, there is any basis to judicially review the Board’s decision.”  

22.  The Court of Appeal in Re Penol, Sally BArsolaso & Iiggs Paul Derrick [2024] HKCA 790, Hon Chu VP and Barma JA, 22 August 2024 held:

“27. Importantly, both before the Board and in the applications before the Judge and in the present application, the 1^st applicant has not identified any other risks of harm that the 2^nd applicant [the child] may separately face in the Philippines.

28. On the papers available to this Court, we also do not see any material that may give rise to a concern of potential non-refoulement grounds relating specifically to the 2^nd applicant but which had not been advanced to the Board or considered by it because of the lack of legal representation on his behalf before the Board.

29.       In the premises, we do not find the 2^nd applicant’s intended judicial review reasonably arguable or any basis to disturb the Judge’s refusal of leave to apply for judicial review.”

23.  The Board had rejected the core facts of the parents’ claim.  The children would have no factual basis in support of their claim.  The parents had confirmed that they had put their children’s issues before the Board for its consideration and they confirmed that the Board’s Decision is not wrong. 

24.  Therefore, I consider that the applicants do not have any reasonable prospect of success in their intended judicial review of the Board’s Decision.

DISPOSITION

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

26.  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 daughter and the 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