NAMIT KUMAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 669 /2026, [2026] HKCA 1455

On appeal from [2026] HKCFI 3140

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 669 OF 2026

(ON APPEAL FROM HCAL NO 138 OF 2023)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

Background

1.  This is an appeal against the decision of Deputy High Court Judge Martin Wong dated 12 June 2026[1] refusing to grant leave for the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement claim. 

2.  The applicant is a national of India.  He lodged his non-refoulement claim on the basis that, if refouled, he would be harmed or killed by the family of his girlfriend. 

Decisions of the Director and the Board

3.  By the Notice of Decision dated 24 November 2014, the Director of Immigration rejected the applicant’s non-refoulement claim.  His appeal was dismissed by the Board on 25 May 2016[2].  The applicant did not attend the hearing before the Board.

The judge’s decision

4.  The applicant filed a Form 86 on 1 February 2023 to seek leave to apply for judicial review against the decision of the Board out of time.  His application was dismissed by the judge on 12 June 2026.

Grounds of appeal

5.  In the notice of appeal filed on 22 June 2026, the applicant stated as his ground of appeal that the decisions of the judge and the respondents are very unfair and make him liable to be removed from Hong Kong to a “risk state” in his home country where his life is not safe.

6.  He put forward the following contentions in his written submissions:

(1)  The Director of Immigration (“the Director”) and the Board reached the decisions wrongly in assessing his non-refoulement claim.  The decisions were not fair and reasonable as required by the Wednesbury test;

(2)  The right to life is protected under Article 28 of the Basic Law and Article 2 of the Bill of Rights.  It must be protected by the criminal law and from extra-judicial killings that he may face if he is deported back to his home country;

(3)  The Director failed to appreciate or give proper importance to the presence of state acquiescence;

(4)  The adjudicator acted unreasonably and was procedurally unfair by placing too much reliance on the country of origin information but failed to take into account the applicant’s personal background and experience;

(5)  The Director failed to take the applicant’s argument into account before reaching the decision;

(6)  The adjudicator made a ruling to dismiss the applicant’s appeal based on findings which the adjudicator ought to allow and thus the decision was irrational;

(7)  The respondent’s decision in refusing the appeal was unreasonable or irrational in the public law sense or is a result of procedural error or unfairness; and

(8)  They relied on some web news which was not officially recognised.  There is no proper investigation of the applicant’s claim.

7.  At the hearing of the appeal, the applicant handed up to the court a copy of the birth certificate of his son born in Hong Kong on 12 April 2025.

Legal principles

8.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14. 

Analysis and disposition

9.  The applicant was late for more than 6 years in filing his application for leave to bring judicial review.  The judge’s decision in dismissing his application is well founded.  The applicant’s grounds and submissions in this appeal are just bare assertions without evidence in support.  He failed to demonstrate that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.  The birth of his son in Hong Kong does not assist his application.

10.  The appeal is devoid of merits and is dismissed accordingly.

[1]  [2026] HKCFI 3140

[2]  The Board’s Decision can be viewed in the following hyperlink:

  https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2023/HCAL000138_2023_files/the_Board's_Decision.pdf