Sidhu Brar Gurmukh Singh and Another v. Torture Claims Appeal Board

HCAL 1488/2021

[2026] HKCFI 3595

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1488 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 applicants in open court;

Order by Deputy High Court Judge Michael WONG:

1.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, and the name of the putative interested party be amended to “Director of Immigration”.

2.  The 1^st and 2^nd applicants’ application for leave to apply for judicial review be dismissed.

Observations for the applicants:

The Leave Application

1.By way of Form 86 dated and filed on 26 October 2021, the applicants 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 10 May 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/HCAL001488_2021_files/the_Board's_Decision.pdf

2.The Board found that the 1^st and 2^nd applicants failed to establish their claims for non-refoulement protection on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board denied their applications for non-refoulement protection in Hong Kong and confirmed the decision of the Director of Immigration (“the Director”) dated 1 March 2017, which rejected the 1^st and 2^nd applicants’ non-refoulement claims.

Amendments

3.The applicants named the Board as both the putative respondent and the putative interested party in Form 86 and spelt the Board’s name wrong.

4.In fact, the Board should only be the putative respondent and the Director should be the putative interested party.

5.Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board” and the name of the putative interested party is amended to “Director of Immigration”.

Late application

6.By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicants had to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made.

7.However, the applicants filed Form 86 on 26 October 2021, which was more than 5 months after the Board’s Decision (made on 10 May 2021). The applicants were hence late for more than 2 months in making the Leave Application, and this court has to consider whether there is any good reason to extend the time for the applicants to make the Leave Application.

8.As held in AW v Director of Immigration [2016] 2 HKC 393, the criteria for granting an extension of time are:

(i)  the length of the delay;

(ii)  the reason for the delay;

(iii)  the merits of the intended application; and

(iv)  any prejudice to the putative respondent and to public administration.

9.The applicants did not make any application for extension of time and provided no explanation for the delay when they filed the Leave Application. At the oral hearing before this court on 11 June 2026, the applicants simply said that they did not receive the Board’s letter containing the Board’s Decision at their address, even though the letter was posted to their correct address. They thought that the letter was misplaced, but could not provide any reason why it would be so. They went to the Board to collect the Board’s Decision and they immediately made the Leave Application thereafter.

10.A delay of more than 2 months is substantial, and the explanation given by the applicants at the hearing is not satisfactory, as there was no reason given as to why the letter would be misplaced. More importantly, there is no merit in the intended judicial review as discussed below.

11.Having considered the above criteria, this court is not prepared to grant any extension of time to the applicants to file the Leave Application, even if an application for extension of time was made. The Leave Application can therefore be dismissed on the ground of being made out of time alone.

12.However, for the sake of completeness, this court will still examine the merits of the Leave Application.

The applicants’ case

13.It is not necessary for this court to repeat the details of the applicants’ case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

14.In sum, the 1^st applicant claimed for non-refoulement protection because if refouled to India, he feared that his uncles and his cousins, with whom he had a land dispute, would kill him. Moreover, since he was a Sikh and married the 2^nd applicant who was a Muslim, he was afraid that he would be killed by the 2^nd applicant’s father who objected to their marriage.

15.As to the 2^nd applicant’s case, she was afraid that her father would kill her because she married the 1^st applicant and abandoned her Muslim faith. She also feared that she would be killed by the 1^st applicant’s uncles because of her marriage with the 1^st applicant.

Oral hearing

16.The applicants requested for an oral hearing of the Leave Application and their case was heard on 11 June 2026.

17.When this court asked the applicants for the grounds of their intended judicial review, the applicants merely adopted what was stated in the 1^st applicant’s supporting affirmation dated 26 October 2021, ie they could not go back to their country because their lives were not safe there.

Grounds for judicial review

18.The applicants are required to identify clearly the grounds for their intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

19.The applicants did not advance any ground for their intended judicial review in their Form 86, nor in the 1^st applicant’s supporting affirmation. The 1^st applicant only mentioned in his supporting affirmation that he was not satisfied with the Board’s Decision, and he could not go back to his country because his life was not safe there. Both the 1^st and 2^nd applicants just adopted the same at the oral hearing.

Discussion

20.First of all, the applicants’ danger upon returning to their country had been duly assessed but rejected by the Board. If they intend to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.

21.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).

22.Thus, it is not for this court to re-assess the applicants’ cases or their danger upon refoulement to India. This court will only scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.

23.In assessing the 1^st and 2^nd applicants’ appeal/petition, the Board held 4 sessions of oral hearing on 26 March 2018, 10 April 2018, 13 April 2018 and 26 November 2018. The applicants were present and were thus given ample opportunity to present their cases to the Board in person.

24.As can be seen from the Board’s Decision, the Board had extensively analyzed every aspect of their claims and provided full and detailed reasoning in rejecting their claims for non-refoulement protection.

25.With regards to the 2^nd applicant’s claimed fear of harm from her father, although the Board attached some credence to her story that her parents disapproved of her out of caste marriage and that she might be in danger if she returned to her parents’ home in Jahal, Punjab or to that vicinity, the Board did not find that the threat from her father was more than a local issue or that she faced a real risk of ill-treatment or loss of life by her father if she relocated to a different area of Punjab or another state in India. The Board found no credible evidence that her father, a truck driver, had the financial resources, connections or network to find and harm her if she relocated to another area of India. The Board found that the 2^nd applicant had failed to discharge the burden on her to prove that she faced a real risk of harm from her father if she returned to India (see paragraphs 54 to 63 of the Board’s Decision).

26.It followed that the 1^st applicant’s risk from the 2^nd applicant’s father for being the 2^nd applicant’s husband had also not been proven.

27.The Board had discussed in great length the 1^st applicant’s many claims in paragraphs 64 to 143 of the Board’s Decision, and it is not necessary to repeat the same here.

28.In gist, the Board found countless discrepancies, inconsistencies and inventions in the 1^st applicant’s evidence. Based on the accumulation of discrepancies and implausible assertions in the 1^st applicant’s evidence, as well as instances in which he lied and distorted his evidence, the Board found that he was neither credible nor reliable. Consequently, the Board was unwilling to attach any credence to more than the most basic aspects of his evidence. While the Board accepted that he was shot in the abdomen, the Board was unwilling to attach any credence to his evidence about the circumstances which caused him to be shot. Similarly, although the Board also accepted that the 1^st applicant was tortured on at least one occasion in India, the Board found him so lacking in credibility and reliability and had such little confidence in his honesty and truthfulness that the Board was unwilling to attach any credence to his evidence regarding how he came to be tortured. More importantly, there was no evidence which suggested that he was tortured or shot at for a Convention reason.

29.The Board did not accept that the 1^st applicant had told the truth about his situation in India, or honestly described his life experiences there. The Board was concerned that he had concealed evidence which he thought would be detrimental. It was more than clear to the Board that he had fabricated and manipulated evidence related to parts of his story. Having duly considered the 1^st applicant’s evidence, the Board did not find that he had discharged the burden on him to prove the centerpiece of his story. Specifically, the Board had not accepted that his uncles and cousins involved their political allies and the police in framing him as many as 8 times, or that the 1^st applicant was a fugitive from justice. The Board noted that the land allegedly in dispute remained in the applicant’s name and for which he continued to receive rental income.

30.The Board accepted that the 1^st applicant’s experience of having shot at and having been tortured did attain a minimum level of severity. However, the 1^st applicant’s evidence did not support a finding that he would once again face such treatment or that there was a genuine and substantial risk that he would be subjected to similar ill-treatment if he was returned to India.

31.The Board did not find that the 1^st applicant had provided truthful evidence regarding the conflict with his family. Hence, the Board found that the 1^st applicant had failed to prove that his uncles and cousins continued to represent a credible threat to him upon his refoulement. By the same token, the Board found that the 2^nd applicant’s risk as the 1^st applicant’s wife in respect of the risk from the 1^st applicant’s uncles and cousins had also not been proven.

32.In its assessment of the 1^st applicant’s Torture Risk[1], the Board explicitly stated in paragraph 165 of the Board’s Decision that while it had accepted that the 1^st applicant was subjected to torture in Punjab, in almost all the other respects, the Board found that he was not credible or reliable. His evidence was marked by demonstrable dishonesty, exaggeration, manipulation, a significant number of discrepancies relevant to his core story, implausible assertions, and a notable reliance on hearsay. The Board found that he had not proven the centerpiece of his story and did not accept that he was in police custody as a result of having been framed by his uncles and cousins.

33.As the 1^st applicant had not provided honest and credible evidence related to the circumstances of his interactions with police, the Board did not find on his evidence that there were substantial grounds, or any grounds, for believing that he would be subjected to torture in Punjab or India if he was refouled. Thus, the Board concluded that the 1^st applicant’s claim under the head of Torture Risk failed. In addition, any risk of torture that the 2^nd applicant might face as the 1^st applicant’s wife, had thus not been proven.

34.On the issue of state protection, the Board considered that the 2^nd applicant was likely to be able to access effective protection from the state should such need arise. With regards to the 1^st applicant, country of origin information (“COI”) suggested that he might have greater difficulty accessing effective protection from the state, given the Board’s finding that he was previously subjected to torture. However, as the 1^st applicant had failed to prove the circumstances which caused him to suffer the incidents of torture, the Board was unable to conclude that effective protection would be unavailable to him if he returned to Punjab, India. The Board found it possible that if he relocated to a different state within India, he would have a better chance of accessing effective protection from the police.

35.As to internal relocation, as said, the Board found the 2^nd applicant could avoid the risk from her father by internal relocation. In addition, the Board was satisfied that as a couple, the 1^st and 2^nd applicants would be able to cope with relocating in India and it was not unduly harsh for them to do so. It should be noted that the Board had explicitly stated that as the 1^st applicant had not established that he was at risk in regard to any of the available grounds under the USM, there was actually no need for it to consider how relocating might impact his safety in India.

36.Hence, the Board concluded that both the 1^st and 2^nd applicants were not entitled to non-refoulement protection under any of the applicable grounds.

37.The finding of facts, including assessment of evidence, COI and risk of harm, was solely within the ambit of the Board. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

38.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.

39.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 applicants have failed to establish such a claim and hence leave must be refused.

Conclusion

40.For reasons aforesaid, the Leave Application in respect of both the 1^st and 2^nd applicants is dismissed for being made out of time and also for devoid of merits.

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