UTTAM KUMAR v. TORTURE CLAIMS APPEAL BOARD

HCAL 1874/2020

[2026] HKCFI 939

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1874 OF 2020

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 or counsel 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 21 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 9 September 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/HCAL001874_2020_files/the_Board's_Decision.pdf

2.  The Board found that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board affirmed the decision of the Director of Immigration (“the Director”) dated 8 November 2018, which rejected the applicant’s non-refoulement claim.

Amendments

3.  The applicant named the Board and Immigration Department as both the putative respondents and the putative interested parties in Form 86.

4.  In fact, only the Board should be named as the putative respondent and only the Director should be named as the putative interested party.

5.  Thus, this court 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

6.  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.

7.  In sum, the applicant claimed for non-refoulement protection because if refouled to India, he would be seriously harmed or killed by his uncle and his uncle’s sons due to a land dispute.

Disposal on paper

8.  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. Thus, the Leave Application is dealt with on paper.

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 advance any ground for his intended judicial review in Form 86, nor in his supporting affirmation dated 21 September 2020. He merely stated in the affirmation that he would like to reject and review the decision as they disregarded his dangerous situation.

Discussion

11.  First of all, the applicant’s alleged dangerous situation had already been fully assessed but rejected by the Board. If the applicant intends to challenge the Board’s finding of facts, it is not permissible in a judicial review.

12.  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).

13.  Thus, despite the fact that the applicant did not advance any ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness, or irrationality as aforesaid.

14.  In assessing the appeal by the applicant, the Board held an oral hearing on 17 July 2020. The applicant was present and was given the chance to present his case to the Board in person.

15.  As can be seen from the Board’s Decision, the Board gave very full and detailed reasoning in finding that the applicant’s alleged dispute with his relatives were either greatly exaggerated or completely untrue. The applicant’s evidence at the Board’s hearing was extremely vague and in important aspects inconsistent with his previous claims. Significantly, the applicant confirmed with the Board that he had never returned to his village after 2007. The Board found that if the applicant did not return to his village after 2007, he could not have had a shop there, and his claims about harassment by his relatives after his return from Dubai were simply untrue.

16.  After due consideration of all the evidence, the Board was satisfied that the applicant’s claim to fear serious harm at the hands of his relatives should he return to India was false. The Board concluded that there was not a real risk that he would suffer any of the proscribed forms of harm at the hands of his relatives or anyone else should he be refouled. Thus, the Board found that the applicant’s claim failed on all the applicable grounds under the USM.

17.  Despite its findings as summarised above, the Board did go on to assess the viability of internal relocation for the applicant for the sake of completeness. The applicant’s evidence was that he lived safely and without problem in Delhi before coming to Hong Kong. In the circumstances, the Board found that the applicant could be reasonably expected to relocate to another part of India such as Delhi to avoid any harm which he might otherwise fear from his relatives.

18.  The finding of facts including the assessment of evidence and risk of harm was solely within the ambit 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 conclusion.

19.  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.

20.  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

21.  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