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

HCAL 1795/2025

[2026] HKCFI 4964

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1795 of 2025

BETWEEN

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 Applicant being absent in open court;

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

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Notice of Decision issued by the Director dated 2 April 2025 (“the Director’s Decision”) and the Decision dated 31 July 2025 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing the appeal against the Director’s Decision as described below.

2.The Director’s Decision has been superseded by the Board’s Decision. Therefore, no order will be made on the application for leave for judicial review of the Director’s Decision.

3.The applicant did not ask for a hearing.

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. He is an illegal immigrant. He lodged a non-refoulement claim with the Director of Immigration (“the Director”) on the basis that, if refouled, he will be harmed or killed by his paternal uncle because of a land dispute.

6.Details of his claim are set out in the Board’s Decision. See hyperlink. https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001795_2025_files/the_Board's_Decision.pdf

The Director’s Decision

7.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”).

8.By way of the Director’s Decision, the Director dismissed the applicant’s claim on all applicable risks because it was unsubstantiated.

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board. On 9 June 2025, the Board conducted an oral hearing for his appeal. He had given oral evidence and answered the Board’s questions.

10.Having considered the evidence, the Board found that the applicant was not telling the truth because there were a number of significant inconsistencies in his evidence [39]; and that there is not a real risk, a real chance, or substantial or strong grounds for believing that he will be serious harmed or killed by his uncle or his uncle’s associates, should he return to India [46].

11.For the reasons above, the Board dismissed his appeal and affirmed the Director’s Decision.

Application for leave to apply for judicial review of the Board’s Decision

12.The applicant has filed Form 86 dated 13 August 2025 for leave to apply for judicial review of the Board’s Decision.

13.The applicant has raised the grounds below to challenge the Board’s Decision.

(1)  The Board erred in making decisions on his appeal.

(2)  The Board totally ignored his fear of danger if he returns to India.

(3)  The Board misdirected itself to hold that only if he had been tortured in the past, will he have the risk of torture in future.

(4)  The adjudicator had not made sufficient research in the relevant country-of-origin information (“COI”) and she had cherry-picked the information or relying on the outdated COI.

(5)  Irrationality – the Board failed to find whether there exists in India a consistent pattern of gross, flagrant or mass violations of human rights.

DISCUSSION

14.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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

15.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

16.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.”

17.The reasons under paragraph 13 are general bare assertions without any evidence in support. The issue of consistent pattern of gross, flagrant or mass violations of human rights should be raised by the applicant, to be verified by the Board. He had not raised this issue himself. They are invalid to challenge the Board’s Decision[1].

18.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

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

Dated the 2^nd day of September 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