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HCAL 397/2021
[2026] HKCFI 1459
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 397 OF 2021
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BETWEEN
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Gurpreet 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, “Director of Immigration” be added as the putative interested party.
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 22 March 2021, 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 11 March 2021 (“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/2021/HCAL000397_2021_files/the_Board's_Decision.pdf
2. The Board found that the applicant had failed to demonstrate that he was entitled to non-refoulement protection in Hong Kong on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board dismissed his appeal/petition against the decision of the Director of Immigration (“the Director”) dated 9 March 2018, which rejected the applicant’s non-refoulement claim, and confirmed the same.
Amendments
3. In Form 86, the applicant did not name any putative interested party, when the Director should be so named.
4. This court therefore makes an order on its own motion to add “Director of Immigration” as the putative interested party.
The applicant’s case
5. 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.
6. In sum, the applicant claimed for non-refoulement protection because if refouled to India, he feared he would be killed by Jagtar Singh (“Jagtar”) due to a property dispute.
Oral hearing
7. The applicant requested for an oral hearing and his case was heard on 24 February 2026.
8. When this court asked the applicant for the grounds of his intended judicial review, the applicant merely said that he would be killed because of a land dispute, and he had already presented all those matters to the Board.
Grounds for judicial review
9. 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).
10. The applicant did not identify any grounds for the intended judicial review in Form 86, nor in his supporting affirmation dated 22 March 2021.
11. What the applicant said at the oral hearing before this court was the basis of his non-refoulement claim, which did not constitute any valid ground for his intended judicial review.
Discussion
12. 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).
13. Thus, even though the applicant has failed to establish any valid ground for challenging the Board’s Decision, this court will still scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.
14. In assessing the applicant’s appeal/petition, the Board held an oral hearing on 27 April 2020 and the applicant was present. Thus, the applicant was given the chance to present his case to the Board in person.
15. As can be seen from paragraphs 25(a) – (f), the Board found some aspects of the applicant’s account vague and without good reasons, some aspects of the applicant’s account given at the Board’s hearing inconsistent with what he stated in previous settings without any good explanation, and some aspects of his account exaggerating and simply defied logic.
16. The Board accepted that Jagtar’s family lived in the applicant’s home village and owned a plot of farmland that neighboured the applicant’s family plot. The two families had had squabbles for many years over the demarcation of the two plots. The Board found that despite that long standing demarcation dispute, the two families resided in the same village throughout and still continued to live in the home village peacefully.
17. Although the Board accepted that a fight took place between the two families prior to the applicant coming to Hong Kong, the fact that the applicant’s family continued to reside peacefully in the home village suggested that the risk of the applicant facing any danger on his return was low. All the members of the applicant’s family were involved in the fight and no one played a major role. In any event, the applicant did not suffer any serious injuries during the fight and recovered soon after. If Jagtar and his family had any intention to cause grave harm, they could well have done so. The Board found the fact that the applicant and his family came out of the fight with few injuries suggested that there was no intention on Jagtar’s side to cause grave harm.
18. Jagtar was not a state actor and the applicant’s perceived risks from Jagtar was not associated with any Convention reasons.
19. With regards to state protection, despite the original assertion of the applicant that the police refused to assist when he reported the assault, the applicant admitted at the Board’s hearing that his family was in fact in the wrong by farming beyond his family plot when they were drunk, and he was only asking the police to mediate the situation. The Board found from country of origin information (“COI”) that despite inadequacies, the state of India was both willing and able to offer effective protection to its citizens.
20. Further and in any event, the Board found that it was not unduly harsh to expect the applicant to relocate to, say, Delhi, in India to avoid any harm from Jagtar. His father’s family resided there and he was able to stay there with his paternal cousin for two months before coming to Hong Kong.
21. The Board thus concluded that the applicant failed to establish his claim for non-refoulement protection on all the applicable grounds under the USM.
22. The assessment of evidence, COI and risk of harm was primarily within the sole ambit of the Board. The Board was entitled to come to its own conclusion. If the applicant is seeking to challenge the Board’s finding of facts, it is not permissible in an application for judicial review. This court finds nothing wrong or unreasonable in the way the Board reached its decision.
23. 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.
24. 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
25. For reasons aforesaid, the Leave Application is dismissed.
Dated the 11th day of March 2026
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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 the applicant’s 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: 11 March 2026
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: 11 March 2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 10838/18/3/290/IN2075
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 520/18
(formerly RBCZ 10921/15)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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