Case Document

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HCAL 1925/2024

[2026] HKCFI 5691

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1925 OF 2024

BETWEEN

	Joban, Jit Singh	Applicant
	and
	Torture Claims Appeal Board	Putative
		Respondent
	and
	Director of Immigration	Putative
		Interested Party

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 or counsel 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”.

2. 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 28 October 2024, 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 23 October 2024 (“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/2024/HCAL001925_2024_files/the_Board's_Decision.pdf

2.The Board found that the applicant was not entitled to non-refoulement protection in Hong Kong on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board refused the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 29 May 2024 and confirmed the same, which rejected the applicant’s non-refoulement claim.

Amendment

3.The applicant named the Board and “Non-Refoulement Claims petition office” as the putative respondents in Form 86, when only the Board should be so named.

4.The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board and should not be named as a putative respondent at all.

5.This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”.

The applicant’s case

6.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.

7.In sum, the applicant claimed for non-refoulement protection because if refouled to India, he would be at risk of being seriously harmed by his girlfriend’s father and brother. The applicant claimed that his girlfriend’s family disapproved the applicant’s relationship with his girlfriend because he was Sikh and they were Hindus.

Disposal on paper

8.The applicant did not request for an oral hearing of the Leave Application. This court is also satisfied that the Leave Application can be disposed of based on the written materials before this court. Hence, the Leave Application is dealt with on paper.

Grounds for judicial review

9.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).

10.In Form 86 and his supporting affirmation dated 28 October 2024, the applicant did not give any grounds for his intended judicial review, but stated that he was not satisfied with the Board’s Decision.

Discussion

11.First of all, the applicant’s general comment that he was not satisfied with the Board’s Decision cannot help him. The applicant did not say why the Board’s Decision was wrong or how the Board had erred in its assessment of the applicant’s claim for non-refoulement protection.

12.The applicant’s alleged risk in his home country had been duly assessed but rejected by the Board. If he intends to challenge the Board’s finding of facts, it is not permissible in an application for 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 [2018] HKCA 524).

14.Thus, despite the fact that the applicant did not advance any valid ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness, or irrationality as aforesaid.

15.In assessing the appeal/petition by the applicant, the Board held an oral hearing on 9 August 2024. The applicant was present and was thus given the chance to present his case to the Board in person.

16.As can be seen from the Board’s Decision, the Board gave full and detailed reasoning in rejecting the applicant’s claims.

17.The Board had laid out its assessment of the applicant’s claims and evidence in paragraphs 68 to 79 of the Board’s Decision. In gist, the Board was unable to confidently dismiss the applicant’s evidence and claims, and had decided to afford the applicant the benefit of the doubt and accepted that his claimed account of events was based on actual events and fact.

18.However, the Board had assessed the said facts against all the applicable grounds under the USM in paragraphs 80 to 119 of the Board’s Decision, and found that the applicant’s fears were of being harmed by private individuals and not by agents of the state. Moreover, the Board considered that there was insufficient evidence to show that there was any state involvement, through the conduct of its own officials or through their instigation, or through the consent or acquiescence of the state, in the conduct of the applicant’s girlfriend’s family or any other person in the claimed circumstances. Thus, the applicant’s feared harm did not come within the definition of torture in section 37(U) of the Immigration Ordinance.

19.Although the Board accepted the applicant’s case that there was a real risk that he would suffer mistreatment that would constitute CIDTP[1] or persecution if he returned to his home area, the Board found that reasonable state protection was available to the applicant upon refoulement, and that internal relocation was a viable option for him.

20.On the issue of state protection, the Board found that the available information indicated that the Indian government had taken reasonable measures to protect the lives and safety of its citizens, and that reasonable system of state protection was available to the applicant in the event he sought assistance and protection from the harm he feared from his girlfriend’s family (see paragraphs 88 to 90 and 108 of the Board’s Decision).

21.The Board had also given full reasons in paragraphs 102 to 107 of the Board’s Decision for its conclusion that if the applicant returned to India, it would be reasonable for him to relocate to a city such as Bangalore, Chennai or Mumbai, where he would not be at risk of being subjected to CIDTP or persecution.

22.Furthermore, the Board did not accept that there were substantial grounds to believe that the applicant faced a real risk of being subjected to the death penalty or being arbitrarily deprived of his life in any of the claimed circumstances or situations or for any other reasons.

23.Thus, the Board concluded that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the USM.

24.The finding of facts relating to a non-refoulement claim, including the assessment of evidence, country of origin information and risk of harm, was solely within the ambit of the Board in dealing with the applicant’s appeal/petition. This court finds nothing wrong or unreasonable in the way the Board reached its decision.

25.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.

26.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

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

Dated the 14^th day of October 2026

( Gladys LEE )
for Registrar, High Court

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

Notes for the applicant: If leave has been granted, the applicant or his solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent/Handed to the applicant/the applicant’s solicitors on: 14/10/2026 Applicant’s ref. no: Nil		Sent/Handed to the putative respondent / the putative respondent’s solicitors / such putative interested parties as may be directed by the Court / the putative interested parties’ solicitors on: 14/10/2026 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative respondent’s ref. no.: USM 23847 Director of Immigration Putative interested party’s ref. no.: QA T/C 976/24 (Formerly RBCZ 5000959/24) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)