Gurinder Preet Singh and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 118/2025

[2025] HKCFI 3141

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 118 of 2025

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicants being present in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicants:

THE APPLICATION

1.The applicants are husband and wife. They had lodged a non-refoulement claim with the Director of Immigration (“the Director”), who rejected their claim by a Notice of Decision dated 26 January 2017 (“the Director’s Decision”).

2.The applicants appealed to the Torture Claims Appeal Board (“the Board”), which dismissed their appeal by Decision dated 9 August 2018 (“the Board’s 1^st Decision”). See HCAL 1762/2018 and paragraph 6 of the Judgment of Court of Appeal [2022] HKCA 587.

3.The applicants applied to the Court for leave for judicial review of the Board’s 1^st Decision. The applicants were legally represented.

4.This Court dismissed their application.

5.On appeal, the Court of Appeal ordered that since the Board in the Board’s 1^st Decision conceded that it was possible that the applicants might establish their claim, the issue of internal relocation should be canvassed, which was not properly done. The matter was therefore remitted to the Board to be re-assessed by another constituted Board, which was duly done.

6.By Decision dated 31 December 2024 (“the Board’s 2^nd Decision”), the Board dismissed the applicants’ appeal and confirmed the Director’s Decision.

7.The applicants jointly apply for leave to apply for judicial review of the Board’s 2^nd Decision.

8.The applicants appeared before the Court on 23 April 2025. As they had applied for legal aid and the result was not yet known, they applied to adjourn the matter until the result of their application is obtained. A memorandum dated 27 March 2025 stated that they applied for legal aid. The Court first refused to adjourn the matter. Upon further reflection, the matter was adjourned to 11 June 2025.

9.The applicants appeared before the Court on 11 June 2025 and confirmed that the Director of Legal Aid had refused their application. The matter therefore proceeded.

The applicants

10.The applicants are nationals of India. They came to Hong Kong on 24 July 2014 as visitors. They overstayed and surrendered to the Immigration Department on 11 August 2014. They lodged a non-refoulement claim on the basis that, if refouled, they will be harmed or killed by a person called Sukhjit Singh Kaka Lohgarh (“Kaka”), who is said to have influence throughout Punjab because of his rigorous involvement in the religious and political sphere in that State of India, and/or the Indian authorities. The facts of the claim are set out in paragraph 3 of the judgment of the Court of Appeal dated 4 May 2022 [2022] HKCA 587 and will not be repeated here.

The Director’s Decision

11.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”).

12.By Notice of Decision dated 26 January 2017 (“the Director’s Decision”), the Director rejected the applicants’ claim, finding that the frequency and intensity of the threats and ill-treatment inflicted upon the 1^st applicant by Kaka under/or the Indian authorities did not attain the requisite minimum level of severity. The Director did not accept that the 1^st applicant would face a real risk of harm from the Indian police and/or authorities, or that they had any particular adverse interest in him. The Director also considered the availability of state protection, and the option of internal relocation, further lowered or negated the perceived risk of harm to the 1^st applicant.

The Board’s 2^nd Decision

13.By Order of the Court of Appeal, the matter was remitted to the Board of different constitution for re-consideration. The applicants and the Director were legally represented before the Board. The hearing took place on 13 June 2024, 9 September 2024 and 24 October 2024 respectively.

14.Having considered the evidence and submissions by the respective legal representatives of the parties, the Board made the following findings:

(1)  The 1^st applicant’s assertions and propositions are not credible as they are speculation and surmise for gaining permission to remain in Hong Kong only [144];

(2)  The 1^st applicant had the intention of making use of non-refoulement regime to achieve his objective of finding work abroad or live in developed first-world nations [144 (t)];

(3)  The Board rejected the 1^st applicant’s allegation that he fled India because he lost faith in the Indian judicial system [144(u)];

(4)  The Board did not accept the 1^st applicant’s allegation that if they return to India, they will be taken by Kaka, whereby the police might claim he tries to escape and they could shoot him or his wife, or both [144(y)];

(5)  The 1^st applicant does not face a real risk of serious harm, or of torture, or of CIDTP, or of death, at the hands of Kaka, or at the hands of anyone else, now or in the reasonably foreseeable future if he is to return to India. [146]

15.For the reasons above, the Board did not find it necessary for it to consider state protection or internal relocation alternative for the applicants. [[147]-[148]

16.It therefore dismissed their appeal and confirmed the Director’s Decision. See the Board’s Decision through hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL000118_2025_files/the_Board's_Decision.pdf.

Application for leave to apply for judicial review

17.The applicants filed Form 86 in Chinese on 9 January 2025 for leave to apply for judicial review of the Board’s 2^nd Decision. The applicants did not put forth any grounds in support of their application.

18.In the 1st applicant’s affirmation in support of their application, the 1^st applicant did not raise any specific reason to challenge the Board’s 2^nd Decision.

DISCUSSION

19.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 2^nd 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).

20.The Court will bear in mind that the Board’s 2^nd Decision should be examined with rigorous examination and anxious scrutiny. The applicants appeared before me, the 1^st applicant confirmed that he understood the Board’s 2^nd Decision. They did not raise any reason to challenge the Board’s 2^nd Decision.

21.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and 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 are errors of law or procedural unfairness or irrationality in the decision of the Board.”

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

DISPOSITION

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

Dated the 26^th day of August 2025

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