NIRJIT KUMAR v. TORTURE CLAIMS APPEAL BOARD

HCAL 3541/2019

[2025] HKCFI 3488

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3541 OF 2019

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;

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 29 November 2019, 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 22 November 2019 (“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/2019/HCAL003541_2019_files/the_Board's_Decision.pdf

2.  The Board found that the applicant’s claims for non-refoulement protection were not made out on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board confirmed the decision of the Director of Immigration (“the Director”) dated 9 July 2018, which rejected the applicant’s non-refoulement claim.

Amendments

3.  In Form 86, the applicant named the Board as both the putative respondent and the putative interested party, but spelt the name of the Board wrong. Also, the Director should be the putative interested party, not the Board.

4.  This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and the name of the putative interested party 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 if refouled to India, he would be harmed by his girlfriend Amandip Kaur’s father, Sital Singh, as he did not approve of their relationship.

Oral hearing

7.  The applicant requested for an oral hearing and his case was heard on 30 July 2025.

8.  However, when this court asked the applicant for the grounds of the Leave Application, the applicant did not want to say anything save that he does not want to go back to India because he is now married to a Hong Kong resident and applying for residency here.

Grounds for judicial review

9.  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).

10.  The applicant did not identify any grounds for the intended judicial review in Form 86, nor in his supporting affirmation dated 29 November 2019. He merely asserted in his affirmation that he was not satisfied with the Board’s Decision because his life was not safe in his own country.

Discussion

11.  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).

12.  Thus, even though the applicant has failed to establish any valid ground for challenging the Board’s Decision, this court will still scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.

13.  In assessing the applicant’s appeal, the Board held an oral hearing on 15 October 2019. The applicant was given the chance to present his case to the Board in person.

14.  After due consideration of the law and the evidence, the Board found that the applicant was not a witness of truth. The Board did not accept that the applicant was in a relationship with a girl named Amandip Kaur, as the applicant’s evidence about his relationship with Amandip Kaur was vague and unconvincing. The Board also found a number of discrepancies and inconsistencies in the applicant’s written and oral evidence, which cast serious doubt on the applicant’s credibility and the credibility of his claims. The applicant’s claims were wholly rejected, including that he had ever been harmed, beaten or shot at because of his alleged relationship with Amandip Kaur.

15.  The Board thus concluded that the applicant failed to establish his claim for non-refoulement protection on all the applicable grounds under the USM.

16.  The Board did not consider availability of state protection and viability of internal relocation. However, as the applicant’s claim and the matters giving rise to his claim for non-refoulement protection were rejected in their entirety, it is therefore not necessary for the Board to consider the availability of state protection.

17.  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).

18.  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.

19.  The assessment of evidence, country of origin information and risk of harm was primarily within the sole ambit of the Board. The Board was entitled to come to its own conclusion. If the applicant is seeking to challenge the Board’s finding of facts, it is not permissible in an application for judicial review. This court finds no errors of the Board in reaching its decision based on all the evidence before it.

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 applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

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

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