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

HCAL 64/2026

[2026] HKCFI 5597

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CNSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 64 of 2026

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and the Applicant being absent in open court;

Order by Deputy High Court Judge To:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.This is the Applicant’s application by Form 86 filed on 7 January 2026 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 22 December 2025 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 14 November 2025 refusing his application for non-refoulement protection.

2.The Applicant was detained in Castle Peak Bay Immigration Centre (“CIC”) when he lodged his Form 86. He was discharged shortly afterwards and reported his address in Sham Shui Po (the “Sham Shui Po address”) to the Immigration Department. He never informed the Court of his address upon his discharge from CIC.

3.The Applicant had requested an oral hearing. A hearing on 26 August 2026 was scheduled and notice of hearing was sent to him by post on 20 July 2026 to his Sham Shui Po address. The notice was returned in the course of mail and marked “no such person”.  Attempts had been made on the afternoon of 25 August 2026 to contact him by telephone through the telephone number he provided to the Immigration Department, but the calls were not answered. The Applicant has kept himself out of reach of the court or the Immigration Department. The Court was satisfied that it had tried its best endeavour to bring the hearing to his notice.  He did not appear at the hearing. Having considered the nature of the application and issues raised, the Decision, the papers, the applicable legal principles and all the circumstances, the Court considered the leave application may be justly determined on paper without an oral hearing.

4.The Applicant is an Indian national, now aged 43. He last arrived in Hong Kong on 8 February 2024 and overstayed since 23 February 2024. He was arrested by the police on 31 August 2025 and referred to the Immigration Department. On 7 September 2025 he lodged a claim for non-refoulement protection by written signification. His claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”) and rejected by the Director’s Notice. His appeal against the Director’s Notice was dismissed by the Board’s Decision. He now applies for leave to apply for judicial review of that Decision.  

The Applicant’s case

5.The factual background leading to the present application, the basis of the Applicant’s claim, the arguments he advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision. These will not be repeated here. The hyperlink to the Board’s Decision is included below[1] for reference. The Applicant and his family are supporters of the Shiromani Akali dal political party (the “SAD”). Since returning from work from Doha in Qatar in February 2021, he became more involved in politics. He learned from his SAD leaders that the Aam Aadmi Party (the “AAP”) was involved in trafficking drugs and providing them to young people in his home area. He felt compelled to do something to help tackle the drug problems. He made door to door visits to promote the SAD and persuade people to switch from the AAP to the SAD. Hence, he became an enemy of the municipal councilor of the AAP in his home area (“his enemy”).

6.One day in mid-September 2023, the Applicant was intercepted by his enemy and three of his underlings. They blamed him for speaking badly about the AAP and caused them financial loss. They assaulted him until some passers-by began to gather around (the “assault incident”). He was hospitalized for three days and recovered in a month.  His mobility and psychological conditions were not seriously impaired by the assault. He did not report the assault incident to the police because he thought it would be useless. On the advice of his SAD leader, he moved to Jammu City to avoid his enemy. He maintained contact with his family and learned that his enemy was looking for him. Towards the end of January 2024, his parents told him that his enemy had found out his whereabouts in Jammu City. Then he fled to Hong Kong in February 2024.

The finding of the Board

7.The Applicant testified before the Board. The Board assessed his claim on the basis of the case as he asserted. The Applicant was only assaulted once. He did not suffer serious injuries. His mobility and psychological conditions were not seriously impaired by the assault. It found the injuries he suffered did not attain the minimum level of severity, and that the pain and suffering arising from the injuries fell outside the definition of ‘torture’ under section 37U(1) of the Immigration Ordinance.

8.In view of the above and that his family members were never physically harmed, the Board found his enemy’s intention was to exert pressure on him to stop him from promoting the SAD rather than to harm or kill him. It found the Applicant had failed to establish a substantive ground to believe that he would face a real and foreseeable risk of ill-treatment by his enemy should he be returned to India. Having regard to the low intensity and frequency of past ill‑treatment by his enemy, the Board found the Applicant had failed to establish that he would be exposed to torture risk.

9.The Board also found his enemy’s influence was limited to his home area only and there was no evidence that his enemy had any affiliation or association with any government officials, organisations and groups in India. There was no evidence that the assault on the Applicant was inflicted by or with the consent or acquiescence of a government official or other people acting in an official capacity.

10.The Applicant departed India using his Indian passport without any difficulties which demonstrates that he was not a target of the Indian government. He adduced no evidence that his dispute with his enemy was related to the Indian government, that he was involved in any breach of the law, let alone one which attracts capital punishment. No charges had been laid by the government authorities against him which fall within BOR 2 Risk ground.  Hence, the Board found that BOR 2 Risk was not engaged.

11.Based on authoritative country of origin information (“COI”), the Board was unable to accept the Applicant’s claim that reasonable state protection would not be available to him in India. It also found the Applicant could avoid the risk of harm by internal relocation. The Applicant’s objection to relocation is his lack of financial means to relocate and his concern that his enemy could locate him anywhere in India. Having regard to the geographical and population size of India, the Board found there are many viable alternatives for internal relocation in India, such as Mumbai and Delhi. By reason of their population size, there are ample business and employment opportunities in these cities and it would be difficult for his enemy to locate him. It found there was no evidence to suggest that his enemy would be able to exercise his influence to mobilise the resources of the AAP or the government to locate him anywhere in India.

12.Applying the law applicable to non-refoulement protection to the Applicant’s case as he asserted and the further facts found, the Board came to the conclusion that the Applicant had failed to establish the factual basis to entitle him to protection under any of the applicable grounds under the USM. Hence, it dismissed his appeal.

Legal principles applicable to judicial review

13.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[2].

Grounds for judicial review

14.The Applicant advanced the following grounds of application in his Form 86:

(1)  The Board applied the wrong legal test by requiring too high a level of risk, instead of assessing whether there was a “real risk” of prohibited treatment;

(2)  The Board failed to consider the Applicant’s evidence as a whole and instead assessed incidents in isolation;

(3)  The Board’s conclusions were irrational and not reasonably open on the evidence, given the assault, threats, and continued interest in the Applicant;

(4)  The Board failed to give clear and intelligible reasons for rejecting the Applicant’s key evidence and claims;

(5)  The Board wrongly discounted the Applicant’s evidence by placing undue weight on the absence of police reporting and corroboration;

(6)  The Board erred in law by concluding that effective state protection was available without properly considering the Applicant’s individual circumstances; 

(7)  The Board misapplied the internal relocation test by failing to assess whether relocation would be reasonable and safe in practice; and

(8)  The Board failed to properly assess the real risk to the Applicant’s life arising from the threats and violence.

15.These grounds are in the nature of general allegations without particulars. The Applicant did not attend the hearing and forwent his opportunity to elaborate on these grounds or to furnish particulars. The Court could only bear these grounds in mind in its overall scrutiny of the Decision. Some of these grounds may be dismissed instantly. In relation to Ground (1), all along the test applied by the Board was the “real risk test” and low standard of proof when assessing the risk of harm. In relation to Ground (4), the Board never rejected any of the Applicant’s key evidence and claims. It assessed the Applicant’s claims on the basis of the case as he asserted. In relation to Ground (5), the Board only mentioned the fact that the Applicant did not make a report on the assault incident as part of the factual circumstance. It drew no adverse inference on his failure to do so. It only found on the basis of the COI that reasonable state protection would be available on his return to India. In relation to Ground (6), as a matter of law the standard of state protection is not an absolute standard, but the adequate or reasonable standard.

Conclusion

16.Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a high standard of fairness.

17.The Board assessed the Applicant’s claim on the basis of the case as he asserted and some further finding of facts based on his case and the COI. It found, inter alia, that his enemy had no intention to seriously harm or kill him, that he was attacked only once, that the injuries he suffered did not attain the minimum level of severity, that the pain and suffering inflicted on him were not serious and fell outside the meaning of ‘torture’ under section 37U(1) of the Immigration Ordinance and that the injuries were not inflicted on the Applicant with the consent or acquiescence of the Indian government. It found the risk of harm facing the Applicant on his return to India would be extremely low and remote, that the BOR 2 Risk ground is not engaged and that he can avoid the risk of harm by seeking state protection and internal relocation. Applying the law applicable to non-refoulement protection to the above finding of fact, the Board came to the conclusion that the Applicant is not entitled to non-refoulement protection under any of the four applicable grounds under the USM.

18.The Board’s finding are mixed finding of facts and of the law. Insofar as they are finding of the law, they are absolutely correct. Insofar as these are finding of fact, they are exclusively within the province of the Board, which the Court on a judicial review will not interfere, save when such finding involved error of law, procedural unfairness and irrationality. On the evidence, it was open to the Board to make those finding of fact. The Court could detect no other error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge his burden of proving his fears and risks. The Court could also find no substance in any of the grounds of application advanced by the Applicant. The proposed judicial review has no realistic prospect of success.

19.For the above reasons, the Applicant’s leave application is refused.

Dated the 8^th day of October 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