Case Document

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HCAL 1296/2023

[2026] HKCFI 5999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1296 OF 2023

BETWEEN

	Jaskaran 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 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”, “Director of Immigration” be added as the putative interested party, and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 14 July 2023”.

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 27 July 2023, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of two decisions, namely: (1) “The Decision of the Adjudicator made on 14^th day of July 2023”; and (2) “the decision of the Director of Immigration dated 4^th day of July 2022”.

2.At the oral hearing before this court on 22 October 2026, the applicant confirmed that only the decision of the Torture Claims Appeal Board (“the Board”) dated 14 July 2023 (“the Board’s Decision”) should be the subject matter of the Leave Application. The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2023/HCAL001296_2023_files/the_Board's_Decision.pdf

3.The Board found that the applicant was unable to make out his claims for non-refoulement protection. The Board rejected his appeal/petition against the decision of the Director of Immigration (“the Director”) dated 4 July 2022 (“the Director’s Decision”) on all the applicable grounds under the Unified Screening Mechanism (“the USM”) and confirmed the Director’s Decision, which rejected the applicant’s non-refoulement claim.

Amendments

4.The applicant named “Member of the Torture Claims Appeal Board / Adjudicator of the Non-refoulement Claims Petition Office” as the 1^st putative respondent and the Director as the 2^nd putative respondent, and did not name any putative interested party in Form 86.

5.In fact, as the Board’s Decision is the only subject matter of the Leave Application, only the Board should be the putative respondent, and the Director should be the putative interested party.

6.Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and to add “Director of Immigration” as the putative interested party.

7.As aforesaid, only the Board’s Decision should be the subject matter of the Leave Application. Thus, the decision in respect of which relief is sought is amended to “Torture Claims Appeal Board’s decision dated 14 July 2023” on this court’s own motion.

The applicant’s case

8.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.

9.In sum, the applicant claimed for non-refoulement protection because if refouled to India, he would be in fear of his life from his neighbour Navkiran Singh (“Navkiran”), who wanted to buy his land but the applicant refused. The applicant claimed that Navkiran was rich and a strong supporter of the India National Congress political party, and that Navkiran had attacked him once in January 2019.

Oral hearing

10.The applicant requested for an oral hearing of the Leave Application and his case was heard on 22 October 2026.

11.The applicant attached a document with the title “GROUNDS ON WHICH RELIEF IS SOUGHT” to his Form 86. When this court asked the applicant to elaborate on the grounds stated therein, the applicant replied that he would rely on what were stated in the document, and he had nothing to add.

Grounds for judicial review

12.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).

13.In the document with the title “GROUNDS ON WHICH RELIEF IS SOUGHT” annexed to his Form 86, the applicant advanced 5 grounds for the intended judicial review, which are summarised as follows:-

(1)  He had been aggrieved by the Board’s Decision;

(2)  He, as the aggreived party, has sufficient interest in the subject matter to satisfy the requirements under Order 53, rule 3(7) of the Rules of the High Court, Cap. 4A;

(3)  Whilst it is accepted that these matters were raised in the Notice of Appeal/Petition (“NOAP”) the high standards of fairness required under Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 ought to have meant that they were given consideration especially as the applicant was unrepresented at the Torture Claims Appeal Board / Non-refoulement Claims Petition Office;

(4)  The Immigration Officer has failed to assess the applicant’s situation, the internal relocation suggested by the Immigration Officer was not reasonable and it would be unduly harsh for the applicant to do so; and

(5)  Should the Immigration Officer have carefully considered all the material facts and documents before him, he would have reached a different conclusion.

14.As aforesaid, at the oral hearing before this court, the applicant only said that he would rely on the grounds stated in the said document, and he had nothing to add.

Discussion

15.First of all, the first two grounds as summarised above did not add anything to the applicant’s case. The applicant was clearly the aggrieved party and he was in fact seeking to judicially review the Board’s Decision.

16.In Ground (3), the applicant seems to assert that the matters that were raised in his NOAP should be given consideration under high standards of fairness. However, the applicant did not state which matters that were raised in his NOAP were not considered by the Board. In fact, this court notes from paragraph 45 of the Board’s Decision that the applicant did not dispute any of the findings of the Director in the Director’s Decision. The applicant indicated that he had not even read the Director’s Decision. Thus, there was simply no basis for the applicant to rely on Ground (3).

17.Grounds (4) and (5) only concerns the applicant’s challenge on the Director’s Decision. As the Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali [2018] HKCA 549), the Director’s Decision cannot be the subject matter of the Leave Application. Moreover, the applicant had confirmed that the only subject matter of the Leave Application was the Board’s Decision and not the Director’s Decision. This court will therefore consider only those grounds directed at the Board in respect of the Board’s Decision. Thus, Grounds (4) and (5) can simply be ignored.

18.Hence, all the grounds stated in the applicant’s said document cannot amount to any valid ground to challenge the Board’s Decision.

19.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).

20.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.

21.The applicant was afforded an oral hearing before the Board on 22 May 2023. He was present and was thus given the chance to present his case to the Board in person.

22.As can be seen from the Board’s Decision, the Board had assessed all the applicant’s claims carefully, and had duly considered his danger arising from his land dispute with Navkiran.

23.The Board’s consideration of the applicant’s evidence and its conclusion were laid out in paragraphs 46 to 72 and 73 to 96 of the Board’s Decision respectively, and it is not necessary for this court to repeat the same here.

24.In gist, the Board did not accept that the applicant would be unable to provide proof of title to the land in dispute, which was said to be registered in his name, either through friends or family or even local attorneys assisting him directly in making a search through the Punjab Land Records Authority portal. The Board concluded that the applicant did not establish a factual basis to his claim to an acceptable standard given the availability of readily obtainable evidence of land ownership. The Board further concluded that the contradictory evidence provided by the applicant as to whether he or his grandfather was the registered owner of the land cast further doubt on the claim.

25.Moreover, the Board considered that the applicant’s lack of any real knowledge of the land registration process indicated that the claim that he was the registered owner was not credible. The Board also found that the applicant had not provided any credible evidence that Navkiran existed as a threat to him. The Board considered that the applicant’s failure to do so was lamentable, given that the applicant had claimed that he had the information to hand, but did not preserve it.

26.The Board also noted from the applicant’s own evidence that the land in dispute was left vacant and Navkiran did not grab it.

27.Based on all the evidence, the Board concluded that the applicant’s claim was not credible.

28.The Board did not consider that the applicant faced a real risk of proscribed harm from Navkiran as claimed if he was refouled to India, and concluded that the applicant’s claims for non-refoulement protection failed on all the applicable grounds under the USM.

29.The Board did not consider availability of state protection and viability of internal relocation. However, as the applicant’s claims were rejected as not credible, it is therefore not necessary for the Board to consider the availability of state protection.

30.As to internal relocation, it is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that he qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997). In other words, internal relocation only arises if the applicant has established a real risk of persecution in his home area (see Gardi v SSHD [2002] 1 WLR 2755).

31.As it is the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm, it is not necessary for the Board to consider internal relocation.

32.The finding of facts relating to a non-refoulement claim, including the assessment of evidence 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 conclusion.

33.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.

34.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

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

Dated the 28^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: 28/10/2026 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: 28/10/2026 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative respondent’s ref. no.: USM 20649 Director of Immigration Putative interested party’s ref. no.: QA T/C 455/22 (formerly RBCZ 5000332/22) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)