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HCAL 1865/2020
[2025] HKCFI 6189
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1865 OF 2020
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BETWEEN
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Sumeet Rana |
Applicant |
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and |
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Torture Claims Appeal Board |
Putative |
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Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
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:
1. On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board” and the name of the putative interested party be amended to “Director of Immigration”.
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 18 September 2020, 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 27 August 2020 (“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/2020/HCAL001865_2020_files/the_Board's_Decision.pdf
2. The Board found that the applicant had failed to establish a case for non-refoulement protection on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board dismissed his appeal/petition and confirmed the decision of the Director of Immigration (“the Director”) dated 26 March 2019.
Amendments
3. The applicant named the Board and Immigration Department as both the putative respondents and the putative interested parties in Form 86, when only the Board should be the putative respondent and the Director should be the putative interested party.
4. Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board” and the name of the putative interested party is amended to “Director of Immigration”.
The applicant’s case
5. 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.
6. In sum, the applicant claimed for non-refoulement protection because he feared that, if refouled to India, he would be harmed or killed by people from Shiromani Akali Dal Party (“SAD”) due to his support for the opposing party Indian National Congress (“INC”).
Disposal on paper
7. 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.
Grounds for judicial review
8. 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).
9. The applicant did not advance any ground for the intended judicial review in Form 86, nor in his supporting affirmation dated 18 September 2020. He merely stated in the affirmation that he would like to reject and review the Board’s Decision as they disregarded his dangerous situation.
Discussion
10. 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).
11. 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.
12. The applicant was afforded an oral hearing before the Board on 14 May 2020 and the applicant was present. Thus, the applicant did have the opportunity to present his case to the Board in person.
13. The Board found that the assaults inflicted by SAD people on the applicant was to warn him not to support INC. The applicant was only a supporter of INC and not even a member. There was no evidence suggesting that SAD people had any intention to kill him. The applicant failed to prove that there was severe pain or suffering that fell within the definition of torture. The level of injuries was minimal. There was no evidence of state acquiescence.
14. The applicant’s fear of ill-treatment did not fall within any of the Convention Categories. It was only a private and personal matter involving difference in political affiliation. It was only the applicant’s mere assertion that there was no state protection offered by the Indian government.
15. The Board did not accept that the ill-treatment encountered by the applicant attained a minimum level of severity. He was hurt in one incident only and the injuries that he suffered were not serious at all. There was no real risk that the applicant would face ill-treatment or arbitrary deprivation of life upon refoulement.
16. Based on extensive country of origin information (“COI”), the Board was satisfied that the Indian authorities took measures to improve the quality of Indian police and administrative efficiency. The Indian police also provided basic degree of protection to its citizens generally.
17. Moreover, the Board found that internal relocation was viable for the applicant. Internal relocation was permissible under Indian law. Being an able-bodied adult who had 14 years of education with around 10 years of work experience, it would be feasible for the applicant to relocate to other areas in India and earn a living there in order to avoid SAD people who attacked him.
18. The assessment of evidence, COI and risk of harm was primarily within the realm of the Board. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its decision.
19. The applicant’s alleged dangerous situation had indeed been duly assessed but rejected by the Board.
20. 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.
21. 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 intended judicial review has no realistic prospects of success at all and hence leave should be refused.
Conclusion
22. For reasons aforesaid, the Leave Application is dismissed.
Dated the 17th day of December 2025
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(Irene LEE)
for Registrar, High Court
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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:
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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)).
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Sent/Handed to the applicant/the applicant’s solicitors on:
17 December 2025
Applicant’s ref. no:
Nil |
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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:
17 December 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 15745/19/4/3/IN3077
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 68/19
(formerly as RBCZ 10/19)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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