Kuldeep Singh v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 33/2021

[2026] HKCFI 88

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 33 of 2021

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

Following;

Order by Deputy High Court Judge (Non-Refoulement Claims) Vincent Lung:

1.  Form 86 be amended, naming the Torture Claims Appeal Board / Non-refoulement Claims Petition Office as the Putative Respondent and the Director of Immigration be named as the Putative Interested Party.

2.  The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.By a Form 86 filed on 8 January 2021 (the “Form 86”), the Applicant applied for leave to apply for judicial review against the “decision made by Ms Lee Lai-ping [on] 6 June 2017”. That was a decision by the Director of Immigration (the “DOI”). 

2.I consider it clear that the Form 86 seeks to challenge this very decision and no other, because firstly the subject decision was identified specifically by the person signing on behalf of the DOI, secondly by reference to a specific date, and thirdly the decision was the only exhibit to the Applicant’s affirmation in support.

3.Before I render my decision on the application, I will need to set out the full procedural chronology.

4.By a decision dated 22 June 2015, the DOI rejected the Applicant’s non-refoulement claims based on torture risk, persecution risk and Article 3 of the Hong Kong Bill of Rights.  This was affirmed by the decision of the Torture Claims Appeal Board (the “TCAB”) dated 13 April 2017 (the “TCAB Decision”).

5.Subsequently, by DOI’s letter dated 19 May 2017, the Applicant was invited to submit additional materials including those relevant to Article 2 of the Hong Kong Bill of Rights (“BOR2”).  The Applicant did not submit any additional material by the deadline, and by letter dated 6 June 2017 the DOI rejected the Applicant’s claims based on BOR2 (“DOI BOR2 Decision”).  There was no petition / appeal against this DOI BOR2 Decision.  Yet that is the subject decision under challenge in the Form 86.  

6.The short answer is that a proposed judicial review is not available against the DOI BOR2 Decision because the Applicant has not exhausted all avenues before seeking judicial review: SI v Director of Immigration (unreported, HCAL 74/2015, 23 June 2017) at [35]-[36]; Kwok Ping Sheung Walter v The Law Society of Hong Kong (unreported, HCAL 73/2012, 27 September 2013) at [26]-[27].  The Applicant ought to have first petitioned / appealed to the TCAB for a review of the DOI BOR2 Decision. The application is therefore dismissed insofar as it concerns a challenge against the DOI BOR2 Decision.

7.To err on the side caution, I will also deal with present application as if it were a challenge to the TCAB Decision (i.e. without any consideration of BOR2 risk).  For this purpose, I amend the Form 86 on my own motion to name the TCAB as the putative respondent and the DOI as the putative interested party.

8.The Applicant requested for a hearing of this application and he attended the same. 

Background

9.The Applicant is a national of India.  He seeks non-refoulement protection on the basis that he would be harmed or killed if he is to return.  The Applicant worked as a travel middleman.  He successfully referred 2 men, members of the ruling party in his home region, to a travel agency known as Baljeet for migration to Australia, each for 500,000 Indian Rupees.  The Applicant would take a commission out of it.  The 2 men subsequently informed the Applicant that Baljeet failed to make appropriate arrangements and disappeared with the money.  They instead demanded the Applicant to return the money.  The Applicant refused and death threats were made using pistols and baseball bats.  The Applicant was also arrested by the local police a few days later for the offence of deception and he was assaulted by the officers.  There were further incidents of assaults against the Applicant after he was released by the police.  The Applicant’s personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be viewed through a hyperlink[1]. I shall therefore not repeat them.

Discussion

10.The leave application operates as a filtering process and there is no requirement or expectation to give elaborate reasons for my decision: Re Zunariyah [2018] HKCA 14 at [23].  It is sufficient to state my observations after considering the TCAB Decision and the materials adduced by the Applicant.

11.I remind myself that in a judicial review, this court does not provide a further avenue of appeal.  Though in non-refoulement cases an enhanced standard in scrutinizing the decision of the TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI are the primary decision-makers.  A finding of fact is exclusively within the realm of the TCAB, and this 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 TCAB: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)]. There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. 

12.In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (unreported, HCAL 21/2015, 22 December 2016) at [142], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

13.The Applicant did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision in the Form 86 nor in his affirmation in support.

14.As can be seen from the TCAB Decision, the TCAB took into account all the evidence available [6-29] and found that on the basis of the same, applying also the correct legal principles in respect of all the applicable grounds (i.e. excluding BOR2 risk) [31-38, 63-65, 69-71, 81-83] and properly considering Country of Origin information [55-60, 79], the Applicant’s allegations were insufficient to make out any of the applicable grounds [39-62, 66-68, 72-77].

15.The TCAB further held that state protection and internal relocation were available on the evidence [61, 76, 78-80].  These were conclusions that the TCAB was fully entitled to reach.

16.At the hearing the Applicant informed me that his danger was continuing.  This however has nothing to do with the issues I need to address, namely the correctness (in the public law sense) of the TCAB Decision.

17.All in all, I do not see any errors of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.  The Applicant’s intended challenge to the TCAB Decision is not reasonably arguable, and accordingly the application for leave to apply for judicial review in this regard is also dismissed.

Dated the 7^th day of January 2026

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