JAYASANKAR SIVAKUMAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1425/2025

[2026] HKCFI 3539

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1425 OF 2025

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D E C I S I O N

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The application

1.  The applicant is an illegal immigrant by staying in Hong Kong without permission and he lodged a non-refoulement claim with the Director of Immigration (“the Director”). The Director rejected his application and he appealed to the Torture Claims Appeal Board (“the Board”). Having considered his evidence, the Board, by its Decision (“the Board’s Decision”), rejected his appeal and affirmed the Director’s Decision.

2.  Pursuant to Order 53, rule 3(2) of the Rules of the High Court (“RHC”), the applicant filed Form No. 86 to apply for leave to apply for judicial review of the Board’s Decision.

3.  By Form CALL-1 dated 15 April 2026 (“the Court’s decision”), the Court dismissed his application as there is no realistic prospect of success in his intended application.

4.  The Court’s decision was sent to the applicant on 15 April 2026 at his last known address without being returned from the Post Office. He is deemed to receive the Court’s decision[1].

5.  The time for filing the notice of appeal expired on 29 April 2026[2].

6.  By summons filed on 5 May 2026, the applicant applied for appeal against the Court’s decision out of time. He is late for 6 days.

7.  In his affirmation in support of his application, the applicant said that he did not know the legal procedures for appeal. In respect of merits, he said the Court failed to apply advanced standards of fairness to his case, was too strict for him as a litigant in person, and has applied too high a threshold for realistic prospect of success for a leave application. In his statement of grounds of appeal, the applicant has set out details of his grounds, which were not in his affirmation in support of his application for leave to apply for judicial review of the Board’s Decision. Those grounds are:

(1)  The judge erred in law by failing to apply anxious scrutiny to the Board’s finding on torture risk.

(2)  The judge erred in law by failing to consider whether the Board applied the correct test for state protection.

(3)  The judge erred in law by failing to give sufficient allowance to the appellant as a litigant in person.

(4)  The judge erred in law by applying too high a threshold for realist prospect of success on leave application.

(5)  The Board’s decision itself was irrational and/or procedurally unfair.

Discussion

8.  Pursuant to Order 32, rule 11 and 11A and Order 53, rule 3(3) of the RHC, I decide to determine this application on paper without an oral hearing[3].

9.  The Court will consider the factors as set out in AW v. Director of Immigration and William Lam [2016] 2 HKC 393 at para. 27(3) in considering if extension of time should be extended: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. I shall consider the merits of his case.

10.  In Re Adumekwe Rowland Ejike [2019] HKCA 702, the Court of Appeal held:

“19. The prospect of success of the intended appeal is important: the court will not grant extension for a hopeless appeal to be pursued, see Re Rahman Wasif [2019] HKCA 299 at [13]; Re Kpamou Gbotoi Bernard [2019] HKCA 168; and Re Irshad Muhammad [2018] HKCA 864 at [16].”

11.  The applicant claimed that if refouled, he will be harmed or killed by his family members of his brother-in-law’s wife because he had killed her father.

12.  The Director rejected his claim because it was not substantiated. He appealed to the Board.

13.  Having considered the evidence, the Board dismissed his appeal because it agreed with the Director that his claim was unsubstantiated.

14.  As to the reason under paragraph 7, although it is delay for 6 days, the applicant should have enquired with the Resource Centre for litigants-in-person of the High Court or the duty lawyers’ office for direction on the procedure for appeal. He may also seek advice from the Director of Legal Aid Office.

15.  As to the merits of his appeal in the statement of grounds of appeal, the applicant did not state his mental suffering with medical evidence in support. Ground (1) fails. The applicant did not raise any research on the country of origin information on state protection to counter the Board’s finding in his affirmation in support of his application. This ground fails. Grounds (3), (4) and (5) are his bare assertions or opinions, such as his challenge on the court’s approach in the assessment of the Board’s Decision and the state protection. They are not valid to challenge the Board’s Decision or the Court’ decision[4]. They fail, too.

16.  There is no valid reason from the applicant to challenge the Board’s Decision or the Court’s decision.

17.  In the circumstances, I refuse to extend time for his appeal. Accordingly, I dismiss his application.