SUMEET RANA v. TORTURE CLAIMS APPEAL BOARD

CACV 1250/2025, [2026] HKCA 325

On Appeal From [2025] HKCFI 6189

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 1250 OF 2025

(ON APPEAL FROM HCAL NO 1865 OF 2020)

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JUDGMENT

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Hon Chow JA (giving the Judgment of the Court):

1.  This is the Applicant’s appeal against the order of Deputy High Court Judge Michael Wong (“the Judge”) dated 17 December 2025 refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 27 August 2020 (“the Board’s Decision”), whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 26 March 2019.

2.  The Applicant alleges that, if refouled to India, he will be harmed or killed by people from the Shiromani Akali Dal Party (“SAD”) because he supported another political party, the Indian National Congress (“INC”), and refused to support SAD instead.  The Applicant’s background, the basis of his claim, the findings of the Board and its reasons for dismissing his appeal against the Director’s decision have been set out in detail in the Board’s Decision, and referred to by the Judge in the Judge’s decision (see §§1, 2, 5 and 6 of the CALL-1 Form).  We do not propose to repeat them here.

3.  The Judge’s reasons for dismissing the Applicant’s leave application are set out at §§10-21 of the CALL-1 Form.  In gist, the Judge held that the Applicant had not advanced any or any valid grounds for his intended judicial review.  The Judge further held that there were no errors of law, procedural unfairness or irrationality in the Board’s Decision.

THIS APPEAL

4.  The grounds of appeal put forward by the Applicant in his Notice of Appeal filed on 30 December 2025 may be summarised as follows:

(1)     The Applicant had no legal assistance, and had only limited opportunity to properly advance his arguments in the proceedings before the Judge[1] (“Ground 1”);

(2)     The Judge failed to find the following errors committed by the Board in the Board’s Decision:

(i)     the Board failed to properly consider the material facts in relation to an attack inflicted on him by people from SAD[2], and erred in holding that the injuries or ill-treatment that he suffered did not attain the minimum level of severity required for non-refoulement protection with reference to the risk of torture^[3] and BOR 3 risk[4];

(ii)     the Board failed to properly consider his role as an active supporter of the INC and the political motivation behind the assaults on him[5], and erred in holding that his dispute was private in nature in assessing his claim with reference to the persecution risk[6];

(iii)     the Board improperly relied on country of origin information (“COI”) to consider his situation at a national level, and failed to properly consider his situation locally in his home area in Tehsil Mukerian[7], and erred in holding that there was no state acquiescence, and state protection would be available to him in India;

(iv)     the Board erred in failing to consider the influence of SAD in India and the undue hardship that he would face if he was to relocate internally[8], and in holding that there were reasonable internal relocation alternatives open to him; and

(v)     the Board erred in failing to give adequate reasons to properly address the credible evidence that he had produced in relation to the circumstances in which he was injured, the threats he received afterwards, and the inaction by the police, and further erred in failing to make a clear finding on his credibility[9]

(“Ground 2” collectively, and “Ground 2.1” to “Ground 2.5” respectively).

5.  In his written submissions lodged on 10 February 2026, the Applicant essentially repeats the factual basis of his claim and the allegations in the Notice of Appeal.  He also complains that the Judge erred in disposing of his leave application on paper without an oral hearing[10].

6.  At the hearing of the appeal, the Applicant said that he was a speaker for INC, and that was the reason why he was targeted by SAD.

DISCUSSION

7.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  The Court of Appeal’s role is not to examine the Board’s decision afresh as if it was a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524, at §14(6)).

8.  Further, the assessment of evidence, COI, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director.  The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022, at §13.  No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

9.  The complaint that his leave application was dealt with by the Judge on paper without an oral hearing has no merit.  The Applicant did not request for an oral hearing of his leave application in the Form 86 or in his affirmation filed in support of the application.  The Judge was entitled, in the exercise of his discretion, to deal with the leave application on paper pursuant to Order 53, rule 3(3) of the Rules of the High Court, Cap 4A.

10.  We now turn to consider the specific grounds of appeal raised by the Applicant in the Notice of Appeal.

11.  Under Ground 1, the Applicant complains that he was not able to fully present his arguments below because of the lack of legal assistance to him and the Judge’s disposal of his application without an oral hearing.  The Court has repeatedly held that a non-refoulement claimant is not absolutely entitled to free legal representation at all stages of the proceedings relating to a non-refoulement claim.  The Applicant had legal assistance in relation to the assessment of his non-refoulement claim by the Director.  Although he had no legal representation before the Board and the Judge, the assessment of his non-refoulement claim by the Board, and the consideration of his leave application by the Judge were thorough and fair.  As earlier mentioned, the Judge was entitled to deal with the leave application on paper since the Applicant did not request for an oral hearing.  Ground 1 is rejected.

12.  Under Ground 2, the arguments advanced by the Applicant are effectively an invitation to this Court to reassess his leave application afresh under the disguise of an appeal.  As mentioned above, this is not the proper function of the Court of Appeal.  In any event, the arguments advanced under the five sub-grounds concern the Board’s assessment of the evidence, COI, risk of harm, state protection and viability of internal relocation, which are matters falling primarily within the province of the Board.  We do not see that the Board made any errors as alleged by the Applicant.

13.  In respect of Ground 2.1, the Applicant disagrees with the Board’s findings at §§33 and 44 of the Board’s Decision that the injuries he suffered in an incident where five to six people from SAD attacked him and caused him injuries, including an open wound to his left arm (“the Attack”), was minimal or not serious. He argues that the Board should not focus on the healing of the wound, and was required to, but did not, take into account the circumstances and aftermath of the Attack in assessing the risk of harm he would face upon refoulement.

14.  This sub-ground is rejected for the following reasons:

(1)     The Applicant’s case, including the violence used in the Attack and the threats received by him and his father subsequent to the Attack, was considered by the Board at §15 of the Board’s Decision. There is no suggestion by the Applicant that the Board misunderstood his case before the Board.

(2)     According to the Applicant, in the three incidents where he was attacked or faced attempted attacks by people from SAD, he was injured only once during the Attack, and recovered fully after around two weeks without hospitalisation (§15(m) of the Board’s Decision).  There was no other evidence produced by the Applicant before the Board, whether medical records or otherwise, to show the actual injuries suffered by him in the Attack.  The Board was entitled to consider the manner in which he recovered from his injuries as one of the relevant factors in assessing the level of severity of the harm or ill-treatment suffered by him. 

(3)     The Board considered that there was no evidence produced by the Applicant to show that people from SAD had any real intention to kill him. The Board also took into account that there was no sign of the Applicant suffering from any further physical or mental conditions despite the Attack, attempted attacks and other oral threats by people from SAD (§§31, 32, 44 and 45).

(4)     It was open to the Board to come to its findings in respect of the level of severity of the Applicant’s injuries having regard to the overall circumstances of the Applicant’s case presented before the Board.  We are not satisfied that the Board erred in its approach or failed to consider or properly consider matters relevant to the Applicant’s claim in finding that the injuries suffered by him were not serious.  We are also not satisfied that the Board’s findings were Wednesbury unreasonable or irrational.

15.  In respect of Ground 2.2, the Applicant’s disagreement is directed at the Board’s finding at §39 of the Board’s Decision.  In particular, he argues that the Board mischaracterised his political conflict with SAD as a private dispute.  In our view, this argument is based on an incomplete reading of the Board’s finding, and is misconceived.  The Bound’s statement at §39 that the Applicant’s dispute with people from SAD was “purely a private and personal matter involving difference in political affiliation” should be read in context with the sentence which appears immediately after the above statement: “There was no evidence to prove that the dispute in question was associated with any government authorities in India”.  The Board further took the view that “[t]here was nothing connected with race, religion, nationality, or membership of a particular social group or political opinion as stated in the Refugee Convention” (§40).  The Board considered that the Applicant was injured and threatened by people from SAD with a view to stopping him from working for INC (§45).  The Applicant’s argument that the Board failed to assess the harm that he suffered in the context of his political background and the political motivation behind the Attack, attempted attacks or threats inflicted on him is not substantiated. His assertion that it is established by law that “persecution extends to visible supporters and activists” is a bare allegation and not support by any legal authority.  On a proper reading of the Board’s Decision as a whole, we do not consider that Ground 2.2 is well-founded.

16.  In respect of Ground 2.3, the Applicant argues that the Board failed to consider the availability and effectiveness of state protection to him locally when there was specific evidence produced in relation to his inability to obtain any or any impartial protection from the local police.  However, according to the Applicant, he did not file any report to the local police in respect of the Attack or any subsequent incidents he encountered because he could not provide any proof of the Attack and believed that the local police were influenced or indirectly controlled by SAD.  Although he asserted that there was no follow up action by the local police after his father had filed a police report on an attempted kidnap of his father by local gangsters allegedly working for SAD, he did not provide any detail or evidence to substantiate this assertion (see §15(t) of the Board’s Decision).  The Bound found no evidence to show state involvement in his dispute with people from SAD, and found no strong evidence to show that the police in India, including the police in his home area, would refuse to assist him if he filed a report to them (§§34, 39 and 41).  We agree with the Board’s view that it was his bare assertion, without any substantive evidence in support, that there was state involvement in his dispute with people from SAD which rendered protection from the local police unavailable to him or ineffective in his case.  The Applicant has failed to raise any substantive basis to contend that the Board’s view, reached after considering relevant COI before it, that the Indian police would generally provide protection to its citizens, is not applicable in his home area.

17.  In respect of Ground 2.4, the Applicant argues that the Board failed to consider the extended influence of SAD, and the undue hardship that he might face due to his caste, as well as difficulties in relation to social ties, access to housing and livelihood, which rendered internal relocation an unfeasible or impractical option in his case. 

18.  There is no merit in this argument.  First, the Board found that the Applicant’s allegation of SAD having extensive resources and connection was not supported by any evidence (§35). The Applicant has failed to point to any specific evidence to show the contrary, other than his bare allegation.  Second, the Applicant’s claim was not raised on the basis of the caste he belonged to.  He is not entitled to raise this fact-sensitive matter for the first time on appeal to challenge the Board’s finding.  Third, his complaint of undue hardship does not show there was any error of law or procedural irregularity in the Board’s view that it would be feasible for him, a 34 years old, able-bodied man with 14 years of formal education and around 10 years of working experience, to relocate to other areas in India to avoid those people from SAD who attacked him in his home area (§60).  There was also relevant COI which supported the Board’s finding on the issue of internal relocation.

19.  In respect of Ground 2.5, the Applicant’s argument directed at the alleged insufficiency of the Board’s reasoning for dismissing his claim largely overlaps with the arguments that he has raised under the other four sub-grounds which we have rejected above.  It is not necessary for us to deal with this remaining sub-ground in detail.  Suffice it to say that we are satisfied (i) the Board had considered all relevant evidence produced by the Applicant (§30), and found that there were material aspects of his claim which were not supported by any or any strong evidence, and (ii) the Board’s reasons were sufficiently clear and detailed in disposing of his claim fairly.  In particular, the Board accepted his account of events in relation to the Attack and other assaults inflicted on him by people from SAD and proceeded to assess his claim on that basis.  Finally, we do not see why a decision of the Board which does not include an express finding on a non-refoulement claimant’s credibility should be considered unfair or unsatisfactory on that ground alone.

20.  In all, the Applicant’s appeal has no merits, and is dismissed.

[1] See §1 of the Notice of Appeal.

[2] See §2 of the Notice of Appeal.

[3] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[4] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[5] See §3 of the Notice of Appeal.

[6] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees.

[7] See §§5, 6 and 8 of the Notice of Appeal.

[8] See §7 of the Notice of Appeal.

[9] See §§4, 9 and 11 of the Notice of Appeal.

[10] See §11 of the Applicant’s Written Submissions.