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

CACV 685/2025, [2026] HKCA 555

On Appeal From [2025] HKCFI 3141

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO.685 OF 2025

(ON APPEAL FROM HCAL NO. 118 OF 2025)

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JUDGMENT

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Hon Anthony Chan JA (giving the Judgment of the Court):

1.  This is the Applicants’ appeal against the order of Deputy High Court Judge K.W. Lung (“Judge”) dated 26 August 2025 by which their application for leave to apply for judicial review (“Leave Application”) against the decision of the Torture Claims Appeal Board (“Board”) dated 31 December 2024 (“Board’s Decision”) was dismissed. By that decision, the Board upheld the decision of the Director of Immigration (“Director”) rejecting the Applicants’ non-refoulement claim.

2.  The Applicants are husband and wife, and they are nationals of India.  The basis of their non-refoulement claim had been set out in detail in the Board’s Decision, which may be viewed online via the hyperlink contained in [16] of the CALL-1 Form.  In gist, the Applicants claim that if they return home, they will be harmed or killed by a politically and religiously influential person and/or the Indian authorities.

3.  In [19] to [22] of the CALL-1 Form, the Judge gave reasons for refusing the Leave Application.

4.  By a Notice of Appeal filed on 3 September 2025, the Applicants appeal against the Judge’s decision.  The Applicants contend that they applied to the Judge to amend the Form 86 at the first hearing of the Leave Application on 23 April 2025 to include new grounds of judicial review but the Leave Application was dismissed for not disclosing any ground for judicial review. 

5.  It appears from the court file that there was a letter of the 1^st Applicant lodged with the High Court Registry on 17 April 2025 (“Letter”) which referred to, inter alia, a request for leave to amend the Form 86.  As Appendix 1 of the letter, a Form 86 (“Draft Form 86”) which contained 3 grounds for judicial review was provided.

6.  In the Affirmation of the Applicants dated 9 January 2025 (“Affirmation”) filed in support of the Leave Application, the Applicants had identified the following grounds for judicial review[1], which shall be referred to as “Grounds 1 to 3” :

(1)     The Board adopted an unreasonable approach in the evaluation of the 1^st Applicant’s credibility;

(2)    The Board applied its own logic which had been found by this Court to be improper;

(3)     The Board wrongly expected the Applicants to obtain evidence to support their claim about corruption of the Indian police, and the absence of such evidence was not a proper basis to reject their claim.

7.  In their Skeleton Submissions lodged on 26 February 2026, the Applicants reiterated the ground in the Notice of Appeal and the grounds for judicial review raised in the Draft Form 86.

8.  The main thrust of the Applicants’ appeal is that the Judge overlooked their grounds for judicial review and failed to deal with the same. 

9.  The 3 grounds advanced in the Draft Form 86, which shall be referred to as “Grounds 4 to 6”, are as follows :

(4)     The Board erred in law by requiring further evidence to corroborate the Applicants’ claim;

(5)     The Board erred in law by requiring proof of past serious harm to establish future risk; and

(6)     The Board unreasonably assessed the risk of harm in relation to the Applicant’s “past efforts” to access state protection.

10.  At the hearing of this appeal, on behalf of himself and his wife, the 1^st Applicant repeated his submission that the Judge had overlooked the facts of his case by mistake, and he hopes to get justice from this Court. 

11.  We accept that the Judge made an error when he held at [17] – [18] of the CALL-1 Form that the Applicants had failed to put forward any ground or reason to challenge the Board’s Decision.  However, it remains essential for the Applicants to show that the 6 grounds for judicial review are (or any one of them is) reasonably arguable in order to succeed in this appeal and obtain leave to apply for judicial review.

12.  By Ground 1, the Applicants contend that the Board should not have concluded that the adversaries of the 1^st Applicant had no reason to harm him because it would not further their objective of recovering money from him.  The Applicants submit that the Board unreasonably expected the adversaries to act in a logical or reasonable manner.  This ground only invites the Court to reach a different conclusion to that of the Board’s and does not disclose any public law error in the Board’s Decision.  It is therefore not reasonably arguable. 

13.  It is trite that the assessment of evidence, Country of Origin information, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director.  The Court will not intervene by way of judicial review unless there is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022 at [13].

14.  Ground 2 is misconceived because the Board did not apply the logic or analysis of its previous decision but determined the appeal with a fresh hearing of evidence and arguments.

15.  By Ground 3, the Applicants allege that the Board required the Applicants to obtain evidence to support their claim about corruption of the Indian police.  The Board did not impose this requirement and had actually accepted that there might be corruption at the lower levels of the Indian justice system, but the appeal process in India would give access to fair trial and justice to the Applicants (§144(l) of the Board’s Decision). Ground 3 is factually wrong and not reasonably arguable.  Further, the Board did not make any finding on availability of state protection (§147 of the Board’s Decision) and the availability of state protection was not a basis for rejecting the Applicants’ claim.

16.  Grounds 4 to 6 were only raised in the Draft Form 86 lodged with the Letter about a week before the hearing of the Leave Application.  A late application to amend Form 86 has been said to have a fairly high threshold to pass in the post-CJR era (see Oriental Generation Ltd v Town Planning Board, unrep, CACV 127/2012, 9 May 2013, per Kwan JA (as she then was) at [16]).

17.  With Grounds 4 to 6, the Applicants seek to argue that the Board should have reached a different conclusion than the ones in §144(j), (d) and (u) of the Board’s Decision.  The Applicants have failed to identify any cogent public law errors in these grounds, and they are thus not reasonably arguable.  The application to amend the Form 86 should have been dismissed.  

18.  Finally, it must be said that despite the Board’s unfavourable assessment of the credibility of the 1^st Applicant, it is evident that in its detailed and comprehensive evaluation of the Applicants’ claim much benefit of doubt was given to the 1^st Applicant’s evidence.

19.  Even though we agree with the Applicants that the Judge had overlooked their grounds for judicial review, we find that those grounds would not have justified a successful application for leave to apply for judicial review, and the outcome of the Leave Application would have been the same. 

20.  In the premises, this appeal is dismissed with no order as to costs.

[1] It has to be said that the grounds for judicial review should have been set out in the Form 86.