Daljit Singh v. Torture Claims Appeal Board

HCAL 1032/2021

[2026] HKCFI 3623

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1032 OF 2021

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

	consideration of the documents only; or
	consideration of the documents and oral submissions by the applicant in open court;

Order by Deputy High Court Judge Michael WONG:

1.  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 21 July 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 7 July 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/HCAL001032_2021_files/the_Board's_Decision.pdf

2.The Board found that the applicant had failed to establish his claim for non-refoulement protection on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board dismissed the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 15 August 2018 and confirmed the same, which rejected his non-refoulement claim.

The applicant’s case

3.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.

4.In sum, the applicant claimed for non-refoulement protection because if refouled to India, his life would be at risk from the Congress Party (“INC”) people as he refused to stop his campaign for Akali Dal and join the INC.

Oral hearing

5.The applicant requested for an oral hearing of the Leave Application and his case was heard on 18 June 2026.

6.When this court asked the applicant for the grounds of his intended judicial review, he merely replied that he had nothing to say and all he wanted to submit with regards to his non-refoulement claim had been placed before the Board.

Grounds for judicial review

7.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).

8.The applicant did not provide any grounds for his intended judicial review in Form 86, nor in his supporting affirmation dated 21 July 2021.

9.As aforesaid, the applicant did not advance any ground for his intended judicial review at the oral hearing before this court either.

Discussion

10.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).

11.Thus, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any valid ground being advanced by the applicant for the intended judicial review.

12.In assessing the applicant’s appeal/petition, the Board held an oral hearing on 29 July 2020. The applicant was present at the hearing. Thus, the applicant did have a chance to present his case to the Board in person.

13.As can be seen from the Board’s Decision, the Board questioned the applicant extensively at the Board’s hearing to try to understand his case better. The Board had provided full and detailed reasoning in rejecting the applicant’s claim. The Board discussed the credibility of the applicant’s claims in paragraphs 20 to 120 of the Board’s Decision, and it is not necessary to repeat the same here.

14.In gist, the Board found that the applicant’s evidence was implausible, incredible and impossible, even bordering on the absurd. The Board was of the view that the applicant had made up the story without having thoughts as to whether the script was plausible, credible and possible, and he forgot the script from time to time. Together with the applicant’s delay in making his non-refoulement claim, the Board found that the applicant did not leave India because his life was at risk from the INC people in India, and he did not come to Hong Kong to seek protection. The Board rejected the applicant’s evidence as not being credible.

15.Nevertheless, the Board went on to analyze the applicant’s claim on the assumption that his evidence was credible. However, the Board still found that the applicant failed to establish a claim for non-refoulement protection.

16.Even on the applicant’s evidence, he only sustained minor injuries in the three attacks he described. None of the applicant’s family members, who were all residing in the same place in India, were ever harmed or beaten up by the INC people. The INC people who assaulted the applicant had no real intention to seriously harm or kill him, as they had ample opportunities to do so, but they did not. The pain or sufferings that the applicant experienced did not attain the level of severity required for international protection.

17.Further, there was no evidence that the perpetuators were public officials or acting in an official capacity. There was no element of state acquiescence in the applicant’s case, and his fear for the INC people was not well-founded.

18.On the issue of state protection, having analyzed the applicant’s evidence including the actions taken by the police and the local village council, the Board was satisfied that state protection was available to the applicant.

19.More importantly, the Board had given full reasons in paragraphs 151 to 160 of the Board’s Decision for a finding that the applicant should be able to establish himself anywhere in his home country, and it would not be unduly harsh or unreasonable for the applicant to relocate to some other areas in India to avoid any perceived harm from the local INC people.

20.Thus, the Board concluded that the applicant was not entitled to non-refoulement protection on any of the applicable grounds under the USM.

21.The finding of facts, including the assessment of evidence and risk of harm, was solely within the ambit of the Board in dealing with the applicant’s appeal/petition. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

22.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.

23.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

24.For reasons aforesaid, the Leave Application is dismissed.

Dated the 24^th day of June 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