Maninder Singh v. Torture Claims Appeal Board
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HCAL 345/2026 [2026] HKCFI 5991 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 345 OF 2026 BETWEEN
Application for leave to apply for judicial review NOTIFICATION of the Judge’s decision (Order 53, rule 3) Following:
Order by Deputy High Court Judge Michael WONG:
Observations for the applicant: The Leave Application 1.By way of Form 86 dated 4 February 2026 and filed on 6 February 2026, 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 28 January 2026 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:- 2.The Board found that the applicant was unable to make out his claim for non-refoulement protection on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board rejected the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 5 December 2025 and confirmed the same, which rejected the applicant’s non-refoulement claim. Amendment 3.In Form 86, the applicant named the Board / Non-refoulement Claims Petition Office as the putative respondent, 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.Thus, this court 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 harmed or killed by his uncle named Balraj Singh due to a land dispute. Oral hearing 8.The applicant requested for an oral hearing of the Leave Application. However, the applicant was absent at the hearing on 15 October 2026. 9.As held in Re Abdus Salam [2019] HKCA 1091, an application for leave to bring judicial review should not be dismissed for want of prosecution merely because the applicant failed to attend the oral hearing of the leave application. The correct approach is to treat the applicant as having withdrawn the request for a hearing by reason of the absence at the hearing, and to proceed to determine the leave application on its merits. 10.Thus, this court will proceed to consider the merits of the Leave Application based on the written materials before this court. Grounds for judicial review 11.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). 12.The applicant annexed a document with the title “Grounds on which Relief is Sought” to his Form 86, which listed the grounds for his intended judicial review under 5 headings as follows:-
13.As aforesaid, the applicant was absent at the oral hearing before this court. Thus, no elaboration could be obtained from the applicant as to the grounds above-stated. Nevertheless, as the applicant was relying on this document when he filed the Leave Application, this court will deal with the grounds as discussed below. Discussion 14.In Ground (A), the applicant challenged that the Board had erred in misapplying the correct legal test for assessing a real risk of harm under Article 3 of the Convention Against Torture, BOR 2[1] and BOR 3[2], by requiring an impermissibly high threshold of proof and treating the absence of recent harm as determinative. The applicant also asserted that the Board had failed to assess risk prospectively and cumulatively, contrary to established authority, and instead relied on speculative reasoning and retrospective assessment of past events. 15.Contrary to the applicant’s aforesaid assertions, the Board had in fact proceeded to consider the applicant’s case by taking it at its highest and having accepted the basic facts as spoken by him, despite its adverse finding on the credibility of the applicant’s claim (see paragraph 40 of the Board’s Decision). The Board’s determination was therefore based on the applicant’s evidence, not speculation. Ground (A) has no merit at all. 16.In Ground (B), the applicant challenged the Board’s finding on his credibility. The applicant asserted that the Board’s conclusion that he was not an honest witness was unsupported by adequate reasons and was not reasonably open to the Board on the evidence. 17.As can be seen from paragraphs 38 to 39 of the Board’s Decision, where the Board gave its assessment on the credibility of the applicant’s claim, the Board found that the applicant’s evidence was insufficient, conflicting and not believable. The Board’s observations laid out in paragraph 38 of the Board’s Decision was the Board’s finding of facts, which was within the sole ambit of the Board in assessing the applicant’s claim. This court finds the Board’s reasoning in this aspect fully justified. 18.In any event, the Board had considered the applicant’s claim by taking it at its highest. Thus, the Board’s determination on the applicant’s non-refoulement claim was not based on its finding on the applicant’s credibility. 19.In Ground (C), the applicant challenged that the Board had erred in law by failing to properly assess whether the Indian authorities would provide effective protection, and whether there was a real risk of acquiescence, tolerance, or failure of due diligence by state actors. He also complained that the Board relied on generalized country information while failing to engage with the applicant’s specific evidence of police inaction, local influence, and corruption affecting access to protection. 20.On the issue of state protection, relevant discussion can be found in paragraphs 42(iv) and 62 to 68 of the Board’s Decision. This court finds that the Board had indeed considered the inaction by individual police officers. However, the Board found no evidence that the entire Indian police would not assist the applicant if needed. The Board also found that there appeared no reason why the applicant could not engage the government or higher authorities for protection if refouled. 21.Moreover, the Board found that the applicant’s own case was that he would be targeted because of a private land dispute with his uncle, who the Board found to be a non-state actor. The Board also accepted that country of origin information (“COI”) showed that corruption in the police force in India had been persistent. However, steps had been taken to improve the situation. The Board had considered COI which were relevant, and found that apart from legislation being in place to combat corruption, there had been successful investigation and arrests implicating the police. 22.This court is of the view that the Board’s finding on state protection, namely that protection from the state and higher organizations would be available to the applicant should he require it, was made after careful assessment of the applicant’s circumstances and the available COI. Thus, Ground (C) is not arguable. 23.In Ground (D), the applicant complained that the Board failed to take into account material considerations including (a) the cumulative impact of repeated assaults, threats, and land-related violence; (b) the applicant’s individual circumstances, vulnerability, and lack of meaningful access to protection; and (c) the relevance of local political influence in rural Punjab. The applicant also claimed that the Board took into account irrelevant considerations, including speculative assumptions about future safety, internal relocation, and national-level anti-corruption mechanisms without evidence of practical accessibility to the applicant. 24.As can be seen from the Board’s Decision, contrary to the applicant’s assertions in ground (D), in assessing the applicant’s claim against all the applicable grounds under the USM, the Board had taken into account and assumed as true all the applicant’s claimed assaults and threats arising from his land dispute with his uncle. The Board had also taken as true that the police did not assist him upon his report. Thus, there is simply no basis for the applicant to accuse the Board for failing to take into account material considerations. 25.In addition, the Board’s assessment on future safety was based on the applicant’s evidence. The Board had given full reasons in paragraph 42(i) of the Board’s Decision for its finding that there was no reliable evidence to show that the applicant’s uncle would harm or kill the applicant if he were to return to India, and it is not necessary for this court to repeat the same here, suffice to say that this court finds no flaw in the Board’s reasoning for this finding. 26.As to the applicant’s challenge on the Board’s finding on internal relocation, this court notes that such finding was made as a matter of caution by the Board. The assessment of viability of internal relocation was not strictly necessary after the Board found that the applicant was not at a real risk of harm or death at the hands of his uncle, and that state protection was available to him. However, there is no basis for the applicant to complain that such a finding is irrelevant. This court finds that the reasons given by the Board in paragraphs 74 to 76 of the Board’s Decision for its view that Delhi or Pune might be suitable places for the applicant to relocate and earn a living without undue hardship fully justified. 27.Finally, in Ground (E), the applicant challenged that the Board had failed to give adequate and intelligible reasons for rejecting the applicant’s case, thereby frustrating the applicant’s right to understand the basis of the decision and to effectively challenge it. The applicant also complained that the Board’s Decision did not demonstrate anxious scrutiny as required in protection claims involving risk of serious harm. 28.As aforesaid, the Board had provided full reasons for its adverse finding of the applicant’s credibility, taken the applicant’s case at its highest in the assessment of his risks against all the applicable grounds under the USM, given detailed reasons as to its findings on the availability of state protection to the applicant, and, as a matter of caution, assessed the viability of internal relocation for the applicant, in the Board’s Decision. 29.Thus, in stark contrast with the applicant’s assertions, this court finds that the Board had given full and justified reasons in rejecting the applicant’s claim after careful examination of all the evidence before it. Hence, Ground (E) is simply devoid of merits. 30.In the premises, this court finds that none of the grounds raised by the applicant could be a valid ground for the intended judicial review. 31.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). 32.Thus, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any valid ground being advanced by the applicant for the intended judicial review. 33.In assessing the applicant’s appeal/petition, the Board held an oral hearing on 22 January 2026. The applicant was present (via Video Conferencing System) and was thus given the opportunity to present his case to the Board. 34.As aforesaid, every aspect of the applicant’s case had been duly and carefully considered by the Board. 35.Despite having taken the applicant’s case at its highest, the Board found no reliable evidence to show that: (1) the applicant’s uncle would harm or kill him if he were to return to India; (2) the applicant faced risks throughout India; (3) the applicant suffered injuries to the required threshold of severity; and (4) the state of India was unwilling to help the applicant for a RC[3] reason. 36.Together with its findings that state protection was available to the applicant upon his return and that internal relocation was a viable option for him, the Board concluded that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the USM. 37.The finding of facts, including the assessment of evidence, COI and risk of harm, was solely within the ambit of the Board in dealing with the applicant’s appeal/petition. 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 error 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 applicant has failed to establish such a claim and hence leave must be refused. Conclusion 40.For reasons aforesaid, the Leave Application is dismissed. Dated the 28th 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
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