Gurpartap Singh and Others v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 206/2022

[2026] HKCFI 4340

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 206 of 2022

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.  The extension of time for the application for Judicial Review be refused; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

THE APPLICATION

1.The Court granted leave to join the 2^nd and the 3^rd applicants in this action as they are members of a family.

2.The 1^st applicant is the father (“the father”), the 2^nd applicant is the mother (“the mother”) of the 3^rd applicant, their son, aged 26 (“the son”). They are illegal immigrants.

3.The applicants jointly apply for leave to apply for judicial review of the Decision dated 6 January 2022 of the Torture Claims Appeal Board (“the Board’s Decision”). Their joint application relies upon the facts of the father and the mother. Their application is late as their application shall not be later than 3 months from the date of the Board’s Decision, which expired on 6 April 2022. Their application was filed on 14 April 2022, which is late for 8 days. This issue will be dealt with below.

4.The applicants appeared before the Court on 20 July 2026.

5.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 applicants

6.The applicants are nationals of India. They lodged a non-refoulement claim, on the basis that, if refouled, they will be harmed or killed by the Punjab police and the Indian government because of the father’s participation in human rights activities on behalf of the Khalra Mission Committee.

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/2022/HCAL000206_2022_files/the_Board's_Decision.pdf

The Director’s Decisions

8.The applicants lodged their torture claim, but the Director rejected their claim by Decision dated 29 October 2012. They filed a petition against the Director’s Decision to the Board. By Decision dated 27 May 2013, the Board dismissed their appeal.

9.By way of supplementary claim form, the applicants relied on the applicable grounds below other than Torture risk under Part VIIC of the Immigration Ordinance for their non-refoulement claim.

10.The Director considered the applicants’ claims in relation to the following risks:

a.  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”);

b.  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

c.  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”).

11.By way of the Director’s Decisions dated 22 December 2017 (“the Director’s Decision”), the Director assessed the applicants’ claims jointly on all applicable grounds except Torture risk and dismissed their claims on all applicable risks because they were unsubstantiated.

The Board’s Decision

12.The applicants appealed the Director’s Decision to the Board. On 18 June 2021 and 26 July 2021, the Board conducted an oral hearing for their appeals. The applicants were represented by Counsel provided by the Duty Lawyer Scheme. The Director was represented by government counsel. The father, the mother and the son had given evidence and answered the Board’s questions.

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

(1)  For the reasons given, the Board had doubt on the father’s overall credibility. [105]

(2)  However, the Board attached some credence to the father’s claims as possibly true. [107]

(3)  The Board attach some credence to the mother’s evidence regarding her experience in India. [110]

(4)  The Board accepted the son’s evidence except his evidence on his public social media account. [115]

(5)  For reasons stated in the Board’s Decision paragraphs 116-125, the Board found that the applicants failed to make out their claims; that the father’s claim that he could face false criminal charges or ill-treatment is entirely speculative. It further found that state protection will be available, and the applicants failed to show a real and substantial risk or a reasonable possibility that, if returned to India, a serious violation of their human rights and serious or intolerable harm would be faced. [127]

(6)  Internal relocation is also viable. [133] On the issue of the new biometric identification system, the Asdhaar, which requires police verification to obtain a new ID card, the Board found that this system is not an impediment to their relocation in India. [144] & [153]

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

Application for leave to apply for judicial review

15.The applicants filed Form 86 on 14 April 2022 for leave to apply for judicial review of the Board’s Decision.

16.The applicants did not raise any specific reason to challenge the Board’s Decision in their affirmation. They have attached a copy of the Board’s Decision to the affirmation.

DISCUSSION

17.As mentioned in paragraph 3, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the court has to consider, inter alia, the prospect of success of the intended application. I shall consider the merits of the applicant’s case.

18.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 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).

19.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the father and the mother submitted that there was a dispute between the adjudicator and the interpreter. As a result, the interpreter was replaced by another interpreter. The first interpreter complained to the mother that the adjudicator was rude. They considered that this would be a disruption to the hearing and therefore unfair to them.

20.There is no such record in the Board’s Decision. Even if it is true, I do not consider the dispute between the interpreter and the adjudicator will make the hearing unfair as the interpreter only served the Board and the applicants to bridge their language barrier. The parties were legally represented. The legal representatives would be able to assist the adjudicator to solve the disputes to ensure a fair hearing before the Board. The findings of the Board on the facts of the case should not be affected by the dispute between the interpreter and the adjudicator, if any.

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

DISPOSITION

22.I refuse to extend time for the applicants to apply for judicial review of the Board’s Decision. Accordingly, I dismiss their joint application.

Dated the 5^th day of August 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