Paramjit Kaur and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2004/2020

[2026] HKCFI 1931

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2004 of 2020

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 oral submissions by the Applicants in open court;

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

1.  Leave 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 Applicant:

THE APPLICATION

1.The 1^st named is the mother (“the mother”) acting as the next friend of the 2^nd applicant, her daughter, aged 8 (“the daughter”). They are illegal immigrants. The mother gave birth to her daughter in Hong Kong.

2.The applicant applies for leave to apply for judicial review of the Decision dated 25 September 2020 of the Torture Claims Appeal Board (“the Board’s Decision”). The applicant’s application relies upon the facts of the mother and her father.

3.The mother and the father appeared before the Court on 11 March 2026.

4.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 and the Director of Immigration is the interested party.

The applicant

5.The applicant is a national of India.

6.The applicant lodged a non-refoulement claim, on the basis that, if refouled, she will face the fear of harm due to:

(1)  the political opinion of her father; and/or

(2)  her father being estranged from his family, and/or

(3)  her membership of a scheduled caste; and/or

(4)  the COVID-19 pandemic.

7.Details of the facts are set out in the Board’s Decision. See hyperlink. https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL002004_2020_files/the_Board's_Decision.pdf

The Director’s Decision

8.The Director considered the applicant’s claim 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”).

9.By way of Notice of Decision dated 30 August 2019 (“the Director’s Decision”), the Director dismissed the applicant’s claim on all applicable risks because it was unsubstantiated.

The Board’s Decision

10.The applicant appealed the Director’s Decision to the Board. On 15 June 2020, the Board conducted an oral hearing for the appeal. The mother had given evidence and answered the Board’s questions. The father was also present at the invitation of the Board.

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

(1)  There is only a remote or speculative risk and therefore not a real risk that the applicant will face the proscribed harm under any of the applicable risks from the father’s political opponents if she returns to India. [51]

(2)  There is only a remote or speculative risk and therefore not a real risk that the applicant will face the proscribed harm from her father’s family if she returns to India. [53]

(3)  In relation to social or official discrimination or harassment if she returns to India, the risk is only remote or speculative and not a real risk to her. [58]

(4)  There will be no risk to her due to COVID-19 pandemic if she returns to India. [65]

12.For the reasons above, the Board dismissed the appeal and confirmed the Director’s Decision.

Application for leave to apply for judicial review

13.The applicants filed Form 86 on 6 October 2020 for leave to apply for judicial review of the Board’s Decision.

14.In support of their application, the mother has raised no specific ground to challenge the Board’s Decision.

DISCUSSION

15.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 Decision on the applicant’s 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).

16.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the mother said she had submitted the full story of her claim and the daughter’s claim to the Board. She complained that the Board did not accept her evidence.

17.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.”

18.I asked the mother if there were any child specific issues, which were not put to the Board for consideration because they were not legally represented. The mother said she had told the Board everything and there is nothing else.

19.There is no valid reason that the Court should interfere with the Board’s findings.

20.The applicant fails to show that there is any realistic prospect of success in the proposed judicial review.

DISPOSITION

21.I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss the application.

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

Dated the 22^nd day of April 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