RAJAN KUMAR v. TORTURE CLAIMS APPEAL BOARD

HCAL 754/2021

[2026] HKCFI 931

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 754 OF 2021

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court / the Applicant being absent in open court;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 40-year-old national of India who arrived in Hong Kong on 4 July 2014 as a visitor with permission to remain as such up to 18 July 2014 when he did not depart and instead overstayed, and was arrested by police more than 3 years later on 20 December 2017, and was subsequently convicted of the offences of breaching his conditions of stay and undertaking unauthorized employment, for which he was sent to prison for 6 weeks. After his discharge from prison and was referred to the Immigration Department for deportation, he raised a non-refoulement claim for protection on the basis that if he returned to India he would be harmed or killed by his cousin over their land dispute in their home village. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Tripuri Town, Patiala, India. After leaving school he worked as a salesman in his home district to make his living.

3.  In 2013 he purchased a property in the village for his home, but as his cousin who lived right next to the property also wanted it as part of his home and therefore offered to buy it from the Applicant, but when the Applicant refused, his cousin became angry and kept pressing him for the sale of the property.

4.  One evening in late 2013 while on his way home, the Applicant was confronted by his cousin who again demanded him to sell him the property, and when the Applicant again refused, his cousin together with his followers attacked him by punching and kicking him for several minutes, and before they left his cousin warned that next time he would be killed if he still refused to sell the property.

5.  As a result, the Applicant became concerned for his safety and fled to Delhi, but later he was located by his cousin who together with his followers attacked him with knives and daggers that the Applicant suffered cut wounds all over his body that he was subsequently rushed to a hospital for medical treatments.

6.  Upon his discharge from hospital, the Applicant decided that it was no longer safe to remain in the country, and so on 3 July 2014 he departed India for Hong Kong where he overstayed, and upon his subsequent arrest by the police more than 3 years later he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 19 July 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.  By a Notice of Decision dated 14 August 2018, the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

8.  In his decision, the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his cousin upon his return to India as low due to the low intensity and frequency of past ill-treatment from his cousin, that there is no evidence of any real intention of his cousin to seriously harm or kill him other than to press him to sell his land to him, that in any event it was a private land dispute between just the 2 of them only without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in India with a large population of 1.2 billion people spread across a vast territory of more than 3.2 million square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from his home district in large cities such as Kolkata or Mumbai where it would be difficult if not impossible for his cousin to locate him.

9.  On 24 August 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 23 February 2021 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 20 May 2021 his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  In its decision[1], the Board found material inconsistencies discrepancies and implausibility in the Applicant’s evidence that it doubted and rejected the credibility of his claim of fear of harm from his cousin over their property dispute that caused him to leave his country to come to Hong Kong to seek protection, that the credibility of his claim was further undermined by his failure to raise it upon first arriving in Hong Kong until more than 3 years later and only after his arrest by police that the Board found that the Applicant had never bought any land in his home village which led to any dispute with any cousin of his or that there was ever any threats from his cousin and concluded that the Applicant will not face any real risk of proscribed harm upon his return to India that his claim for non-refoulement protection failed on all applicable grounds.

11.  On 25 May 2021, the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or his supporting affirmation of the same date in which he just stated that he is not satisfied with the decision but without putting forth any proper ground for his intended challenge. As such, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge of the Board’s decision.

12.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

13.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

14.  Furthermore, the fact is that it has also been correctly established by the Director in his decision that the risk of harm in the Applicant’s claim even if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, a decision also agreed and confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

15.  Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

16.  It is also of note that the Applicant recently on 13 January 2026 in writing requested to withdraw his application as he has married in Hong Kong but without providing any explanation as to what has happened to his claimed risk in his home country.

17.  In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I refuse to grant leave and accordingly dismiss his application.

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

Form CALL-1