BHARDWAJ RAMANDEEP KAUR AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1675/2020

[2026] HKCFI 824

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1675 of 2020

Application for Leave to Apply for Judicial Review

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

Following;

	consideration of the documents only;          or
	consideration of the documents and oral submissions by the Applicants in open court;

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 2^nd applicant’s application a nullity.

Observations for the Applicants:

THE APPLICATION

1.  The applicants come from a family of 4 people: the father, the mother, an elder son and a younger son. The 1^st applicant is the mother (“the mother”), who also acts as the guardian ad litem of the 2^nd applicant, aged 7 (“the younger son”). They are illegal immigrants. The mother gave birth to the younger son in Hong Kong.

2.  The father, the mother and the elder son had jointly lodged non-refoulement claim with the Director or Immigration (“the Director”), who rejected their claim. They appealed to the Torture Claims Appeal Board (“the Board”). By Decision dated 22 December 2017 (“the Board’s 1^st Decision”), the Board dismissed their appeal.

3.  Acting by the mother as the guardian, the younger son lodged his separate non-refoulement claim with the Director. The Director refused his claim. The younger son appealed to the Board. By Decision dated 12 June 2020 (“the Board’s 2^nd Decision”), the Board dismissed the younger son’s appeal.

4.  Before this Court, the mother said that the father and the elder son would not apply for leave for judicial review of the Board’s 1^st Decision. She would ask for leave for judicial review against the Board’s 1^st Decision and the younger son would do the same against the Board’s 2^nd Decision. The mother has put down the date of 19 June 2020 for the Board’s 2^nd Decision, which is an error and will be rectified below.

5.  The mother’s application is out of time because the Board’s 1^st Decision is dated 22 December 2017, the deadline for filing Form 86 was on 22 March 2018[1]. She filed it on 18 September 2020, which is late for more than 2 years and 5 months.

6.  Since the younger son’s application is within time and the facts of his case rely on the facts of the mother, the Court has to consider the facts of the mother’s case for assessment of the younger son’s application, the Court will extend time for the mother’s appeal.

7.  The applicants appeared before the Court on 19 January 2026.

8.  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, the Director of Immigration is the interested party and the date of the Board’s 2^nd Decision is 12 June 2020.

The applicants

9.  The applicants are nationals of India.

10.  The applicants lodged a non-refoulement claim, on the basis that, if refouled, they will be harmed or killed by the family of the mother because they disproved the marriage between the father and the mother who were of different castes.

11.  Details of the facts are set out in the Board’s Decisions. See hyperlink. https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001675_2020_files/1st_Board's_Decision.pdf https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001675_2020_files/2nd_Board's_Decision.pdf

The Director’s Decisions

12.  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”).

13.  By Notice of Decision dated 22 June 2026 (“the Director’s 1^st Decision”), the Director refused the mother’s claim on Torture risk, BOR 3 risk and Persecution risk; and by Notice of Further Decision dated 7 August 2017 (“the Director’s 2^nd Decision”), the Director refused the mother’s claim on BOR 2 risk for the reason that it was not substantiated. By another Notice of Decision dated 19 June 2019 (“the Director 3^rd Decision”), the Director refused the younger son’s claim on all applicable risks for the same reason.

The Board’s Decisions

The Board’s 1^st Decision

14.  The mother appealed the Director’s 1^st Decision and 2^nd Decision to the Board. On 2 November 2017, the Board conducted an oral hearing for the mother’s appeal. The mother had given evidence and answered the Board’s questions.

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

(1)  Her evidence was consistent and impressive. The Board accepted the facts as alleged. [68]-[69], [71]&[73]&[78]

(2)  The Board found that internal relocation will mitigate or neutralized the risks, and is viable. [96], [104]-[105]

The Board’s 2^nd Decision

16.  Acting by the mother, the younger son appealed the Director’s 3^rd Decision to the Board. The Board decided not to hold an oral hearing for the younger son. The Board considered that the younger son’s situations are the same as the mother and the elder brother. For the reason that internal relocation for his parents is feasible and not too harsh, the Board held that the risks as claimed would be mitigated or neutralized by internal relocation. It therefore dismiss the younger son’s appeal.

17.  For the reasons above, the Board dismissed their appeals and confirmed the Director’s Decisions in respect of the mother and the younger son.

Application for leave to apply for judicial review

18.  The applicants filed Form 86 on 18 August 2020 for leave to apply for judicial review of the Board’s Decisions.

19.  In support of their application, the mother has not raised any specific ground to challenge the Board’s Decisions. She simply said that it would be dangerous for them to return to India.

DISCUSSION

20.  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 Decisions on the applicants’ appeals. 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).

21.  The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. Before me, I asked the mother if there was any child specific issue of the younger son that should be considered by the Court. The mother said his situation was similar to hers.

22.  The mother has raised no valid reason to challenge the Board’s 1^st Decision.

23.  It is apparent that the younger son was 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 Boar’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.

24.  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 .”

25.  The Board had considered the younger son’s situations separately.

26.  The mother has not raised any concern of potential non-refoulement grounds relating to the younger son, but which had not been advanced to the Board or considered by it because of lack of legal representation on their behalf before the Board.

27.  I am satisfied that the Board had applied higher standards of fairness in the assessment of the appeals. I find that the younger son has raised no valid reason to challenge the Board’s 2^nd Decision. Nor do I find any child specific issues, which was not brought to the Board’s consideration because of lack of legal representation for the younger son.

28.  I consider that the applicants do not have any reasonable prospect of success in their intended judicial review of the Board’s Decisions.

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

DISPOSITION

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

31.  I shall treat non-compliance with Order 80, rule 2 of the RHC in these proceedings as a mere irregularity without rendering the younger son’s application 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