KAPOOR RAVIKANT v. TORTURE CLAIMS APPEAL BOARD

HCAL 292/2020

[2025] HKCFI 3238

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 292 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 in open court;

1.   On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”.

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 6 February 2020 and filed on 3 March 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 30 October 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/2020/HCAL000292_2020_files/the_Board's_Decision.pdf

2.  The Board found that the applicant’s claims for non-refoulement protection on all the applicable grounds under the Unified Screening Mechanism (“the USM”) failed.  Hence, the Board affirmed the decision of the Director of Immigration (“the Director”) dated 15 August 2018 (“the Director’s Decision”), which rejected the applicant’s non-refoulement claim. 

Amendment

3.  In Form 86, the applicant named “Torture Claims Appeal Board / Non-refoulement Claims Petition Office” as the putative respondent when only the Board should be the putative respondent.  The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board and should not be named as a putative respondent at all.

4.  Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board”.

Late application

5.  By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant had to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made.

6.  However, the applicant filed Form 86 only on 3 March 2020, which was more than 4 months from the date of the Board’s Decision (made on 30 October 2019).  The applicant was therefore late for more than 1 month in making the Leave Application.

7.  This court has to consider whether the time for the applicant to make the Leave Application should be extended taking into account of the criteria laid down in AW v Director of Immigration [2016] 2 HKC 393, which are:

(i)      the length of the delay;

(ii)     the reason for the delay;

(iii)    the merits of the intended application; and

(iv)    any prejudice to the putative respondent and to public administration.

8.  On 3 March 2020, the applicant filed a Certificate of Urgency dated 20 February 2020, in which he gave the reason for the delay in filing the Leave Application, ie he had been serving sentence and then was detained in an Immigration Detention Centre, which prevented him from making the Leave Application. 

9.  At the oral hearing before this court on 22 May 2025, the applicant reiterated that he was in detention during the material time and hence he could not file the Leave Application in time.

10.  Although the delay was not too long and the applicant provided an acceptable reason for the delay, there is no merits of the intended judicial review as discussed below.  Having considered the above criteria, this court is not prepared to grant any extension of time to the applicant to file the Leave Application to pursue a hopeless judicial review.

11.  Thus, the Leave Application can be dismissed for being made out of time alone.  However, for the sake of completeness, this court will consider the merits of the Leave Application as discussed below.

The applicant’s case

12.  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.

13.  In sum, the applicant claimed for non-refoulement protection because he had a land dispute with his paternal uncle and his own wife, and he feared that he would be harmed or killed by them if he were to be refouled to India.

Oral hearing

14.  The applicant requested for an oral hearing of the Leave Application and his case was heard on 22 April 2025. However, the applicant was absent at the hearing. 

15.  Subsequently, the applicant sent a letter dated 24 April 2025 to this court.  He stated in the letter that because of his lack of awareness, he moved to a new address without notifying the Immigration Department.  As a result, he missed the hearing on 22 April 2025. He requested this court to grant him another opportunity due to his oversight.

16.  This court acceded to the applicant’s request and fixed another hearing for him on 22 May 2025.

17.  At the hearing on 22 May 2025, apart from giving the reason for the delay in filing the Leave Application, the applicant confirmed that he would rely on the grounds attached to his Form 86, but he could not elaborate on any of the grounds and he had nothing else to supplement.

Grounds for judicial review

18.  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).

19.  The applicant annexed a document to Form 86 with the title “Grounds on which Relief is sought”.  The contents of this document are reproduced as follows:-

“1. I believe that the Director of Immigration and the Adjudicator of Appeal Board reached the decision wrongly in assessing my Non-refoulement claim. I believe the decisions were not reasonable and fair (as required by the Wednesbury test). Indeed, the right to life is protected under Article 28 of the Basic Law and Article 2 of the Bill of Rights. In practice, the right to life is mainly protected by the criminal law and it must be protected from extra-judicial killings that I may face if I am deported back to my country.

2. From the Director’s Decision, it is evident that the director has failed to appreciate or give the proper importance or weightage to the presence of state Acquiescence in my case. This has indeed led to an unfair outcome of rejecting my non-refoulement claim. I was tortured at the Behest and the state law enforcement agencies as well as those in the high ups of political circles. It is submitted that the state would be rendered liable to me by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence.

3. The Adjudicator acted unreasonable and was procedurally unfair by placing too much reliance on Country of Origin Information but failed to take my personal background and experience into account. Further, I submit that although the Director had listed relevant COIs which support the aversions that the police in my country would not be able to protect. The Director failed to consider or give enough weightage to those evidence and ruled otherwise.

4. I submit that the Director has failed to take such argument into account or that the Director has failed to give enough weight to such argument before reaching the Decision. This was a clean case of unfair attitude shown by the Director which in itself is enough to render his Decision void. In Fact, the corruption and incompetency of the administration in my country is still a very serious problem. Various human rights organization has complied reports on the matter which stated testament to my assertions.

5. Further, the director has failed to attain the high standard of fairness required by the Wednesbury test in the decision with the arguments put forward above. As such, the decision of the director should be considered unreasonable in the scope of Public Law.

6. The Adjudicator was procedurally improper and/or unfair when assessing whether to accept or not to accept explanations provided by me, and unreasonably requires me to response to questions that I was not in a position to offer any response. The Adjudicator failed to take into account the nexus of political parties and official corruption which exists in my country, making the persecution effectively persecution by the State.

7. The Adjudicator made a ruling to dismiss my appeal/petition in the Torture Claims Appeal Board/Non-refoulement Claims Petition Office based on findings which the Adjudicator ought to allow the appeal/petition, and thus the Decision was irrational.

8. I humbly ask this Honorable Court to grant leave to have the Decision judicially reviewed.”

20.  The said document with contents as stated above was in fact used by many applicants in similar applications as their grounds for applying leave to judicially review the Board’s decisions.  It is like a template for such applicants and they just used the grounds stated therein without any regard to their own situations.  Nevertheless, as the applicant is relying on the above grounds to make the Leave Application, this court will still deal with the grounds as discussed below.

Discussion

21.  First of all, some of the above grounds were directed at the Director. As the Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali [2018] HKCA 549), the Director’s Decision cannot be the subject matter of the Leave Application.  This court will therefore consider only those grounds directed at the Board in respect of the Board’s Decision.

22.  Paragraphs 2, 4 and 5 of the applicant’s grounds were directed at the Director.  Hence, they could not be used to challenge the Board’s Decision and can be simply ignored.  Paragraph 8 of the grounds was just asking this court to grant leave to have the Board’s Decision judicially reviewed.  It is not a ground at all.  Thus, only paragraphs 1, 3, 6 and 7 of the grounds are relevant to the Leave Application.

23.  In paragraph 1 of the grounds, the applicant alleged that the adjudicator of the Board reached the Board’s Decision wrongly and it was not reasonable and fair as required by the Wednesbury test.  However, the applicant did not state how or why the Board’s decision was wrong, unfair and unreasonable.  It does not help the applicant to establish any ground by just mentioning the right to life in paragraph 1. 

24.  In any event, the Board did assess the applicant’s risk of right to life.  The Board found on the evidence as presented that there was no real risk to his right to life and no prospect that he would face torture or cruel, inhuman or degrading treatment or punishment if he were to return to India.

25.  In paragraph 3 of the grounds, the applicant alleged that the adjudicator acted unreasonably and was procedurally unfair by placing too much reliance on country of origin information (“COI”) but failed to take his personal background and experience into account.  However, the applicant did not state which aspects of his personal background and experience had not been taken into account by the Board. 

26.  In fact, the Board did consider the applicant’s personal background and experience very extensively.  It is clear from the Board’s Decision that it had taken into account the applicant’s personal background, his experience with his uncle and his wife and his travel history.  The Board actually found the applicant’s story credible.  The applicant’s claim for non-refoulement protection was rejected because there were options at the applicant’s hands to resolve the problems, such as selling the land in dispute and divorcing his wife.  More importantly, internal relocation was viable for the applicant as he had moved to two different places in India and remained there without any problems.

27.  The applicant further alleged in paragraph 3 of the grounds that although the Director had listed the relevant COI which supported the aversions that the police in his country would not be able to protect, the Director failed to consider or give enough weightage to those evidence and ruled otherwise. This is just a vague and general accusation without any specificity. 

28.  In fact, the Board did not make any finding that the police in India would not be able to protect the applicant.  On the contrary, the Board found it safe for the applicant to relocate to other parts of India.

29.  In paragraph 6 of the grounds, the applicant alleged that the adjudicator was procedurally improper and/or unfair when assessing whether to accept or not to accept explanations provided by him, and unreasonably required him to respond to questions that he was not in a position to offer any response.  This accusation lacks any particulars in support.  The applicant did not state which explanations he provided were not accepted by the Board and which questions he was not in a position to offer any response.

30.  There was in fact nothing wrong for the Board to question the applicant extensively to try to understand his claims better and to assess his credibility and his accounts of the events leading to his claim for non-refoulement protection.  The questions were necessary for the Board to fulfil its duty of finding of facts in relation to the applicant’s claim.  This court finds no fault or unfairness in the Board’s questioning of the applicant at all. 

31.  In any event, the Board was willing to accept the applicant as a credible claimant and his claim as probably true because the applicant recounted his claim more or less without variation in his evidence to the Board.  Thus, it is absolutely groundless for the applicant to make the accusations in paragraph 6 at all.

32.  In paragraph 7 of the grounds, the applicant simply alleged that the adjudicator ought to allow the appeal/petition and the Board’s Decision was irrational.  There was no particulars or reasons given to say how or why the Board’s Decision was irrational.

33.  As held by the court of appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”.  Thus, none of the aforesaid paragraphs in the grounds could establish any valid ground to challenge the Board’s Decision when they are so vague and general without any requisite particulars related to the applicant’s case.

34.  It is therefore this court’s finding that the applicant has failed to establish any valid ground for challenging the Board’s Decision.

35.  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).

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

37.  As aforesaid, the Board accepted the applicant as a credible claimant and his claims as probably true, but the Board rejected his non-refoulement claim because there were solutions to his problems in India and internal relocation was viable for the applicant.  It might not be appropriate for the Board to suggest to the applicant to sell his land or to divorce his wife, but the Board did find that even with the continuation of renting out the land to receive an income, the applicant would not have any problems with his uncle and his wife.  The Board concluded that the applicant did have a safe and reasonable internal relocation alternative and did not face a real risk of any form of harm upon return to India. 

38.  The assessment of evidence, COI materials and risk of harm was primarily within the realm of the Board.  The Board was entitled to come to its own conclusion.  Although it might not be necessary for the Board to suggest to the applicant to sell his land or divorce his wife, this court finds nothing wrong or unreasonable for the Board to conclude that the applicant was safe to relocate within India and he would not face any proscribed form of harm.

39.  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. 

40.  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

41.  For reasons aforesaid, the Leave Application is dismissed for being made out of time and also for devoid of merits.

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