|
HCAL 1717/2021
[2026] HKCFI 3586
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1717 OF 2021
|
BETWEEN
|
| |
Parmod Kumar |
Applicant |
| |
and |
|
| |
Torture Claims Appeal Board |
Putative |
| |
|
Respondent |
| |
and |
|
| |
Director of Immigration |
Putative |
| |
|
Interested Party |
Application for leave to apply for judicial review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)
Following:
Order by Deputy High Court Judge Michael WONG:
1. On this court’s own motion, the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 14 December 2021”.
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 17 December 2021, 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 18 December 2021.
2. However, the Board only made one decision dated 14 December 2021 (“the Board’s Decision”) in respect of the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 24 December 2018 (“the Director’s Decision”). The applicant also confirmed at the oral hearing before this court on 11 June 2026 that the Board’s Decision should be the subject matter of the Leave Application, and the date of decision he put in Form 86 was just a mistake.
3. Thus, it is clear that that Board’s Decision is the subject matter of the Leave Application. The Board’s Decision can be viewed in the following hyperlink:-
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL001717_2021_files/the_Board's_Decision.pdf
4. The Board found that the applicant was not entitled to non-refoulement protection in Hong Kong on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board refused the applicant’s appeal/petition against the Director’s Decision and confirmed the same, which rejected his non-refoulement claim.
Amendment
5. As aforesaid, the Board’s Decision should be the subject matter of the Leave Application.
6. Thus, on this court’s own motion, the decision in respect of which relief is sought is amended to “Torture Claims Appeal Board’s decision dated 14 December 2021”.
The applicant’s case
7. 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.
8. In sum, the applicant claimed for non-refoulement protection because if refouled to India, he feared harm from Mr Gurminder Singh Lalli, (“Lalli”) in relation to a business deal, and from Mr Amrik Singh (“Mr Singh”) to whom he owed money that he could not repay.
Oral hearing
9. The applicant requested for an oral hearing of the Leave Application and his case was heard on 11 June 2026.
10. When this court asked the applicant for the grounds of his intended judicial review, he merely replied that he was not satisfied with the Board’s Decision as the Board did not properly look at his case. He said that some of the dates mentioned in the Board’s Decision were wrong, but he could not recall them as it had been a long time since the Board’s Decision was made. As he could only read a little English and could not remember the content of the Board’s Decision, the hearing was stood down for the Board’s Decision to be interpreted to him.
11. After the Board’s Decision was interpreted to him, the applicant could not say which dates were wrongly stated in the Board’s Decision. However, the applicant alleged that he was not aware of how to get protection in Hong Kong, and as no one told him about the procedures, he was late in making the application for non-refoulement protection. Moreover, he said that his life was in danger and he could not go back to his country.
Grounds for judicial review
12. 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).
13. The applicant did not provide any ground for his intended judicial review in Form 86, nor in his supporting affirmation dated 17 December 2021.
14. At the oral hearing before this court, the applicant merely said that the Board did not look at his case properly, his life was still in danger if he returned to his country, he was late in making the application for non-refoulement protection because he was not aware of how to get protection in Hong Kong. As said, although he alleged that some of the dates stated in the Board’s Decision were wrong, he could not say which dates were wrongly stated by the Board, despite that the Board’s Decision was interpreted to him.
Discussion
15. First of all, the applicant’s allegations that the Board did not look at his case properly and that some of the dates were wrongly stated in the Board’s Decision were advanced without any particulars.
16. The Court of Appeal has repeatedly held that general assertions without particulars cannot be effective grounds to support a judicial review (see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; and Re Kharsu Numan [2019] HKCA 626). Further, 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, the applicant’s aforesaid general allegations cannot help him at all.
17. As to his claim that his life was still in danger and the reasons for his lateness in lodging his non-refoulement claim, these matters had been duly considered by the Board. If he intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.
18. Thus, none of the matters put forward by the applicant at the oral hearing amounts to any valid ground to challenge the Board’s Decision.
19. 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).
20. Thus, the applicant cannot ask this court to re-assess his claims. Nevertheless, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any valid ground being advanced by the applicant for the intended judicial review.
21. In assessing the applicant’s appeal/petition, the Board held an oral hearing on 4 October 2021. The applicant was present at the hearing. Thus, the applicant did have a chance to present his case to the Board in person.
22. As can be seen from the Board’s Decision, the Board had provided full and detailed reasoning in rejecting the applicant’s claim.
23. As aforesaid, the applicant’s reasons for his lateness in lodging his non-refoulement claim had been duly considered by the Board. The Board had laid out its consideration of the applicant’s lateness in seeking protection in paragraph 44 of the Board’s Decision. The Board considered that the delay was not consistent with the applicant’s holding a real fear of harm in India. The Board regarded his actions and conduct after his departure from India to be more consistent with an intention to do business than with a need for international protection.
24. In addition to the significant problem of the applicant’s delay in applying for protection, the Board also found a number of other issues in the applicant’s claim, including the various financial transactions, the reason why the applicant had lost touch with every family member since leaving India, the many inconsistencies in his evidence, his evidence about the fraud case against him, and his travel history, etc.
25. The Board was also not satisfied that the applicant was at risk of harm from Lalli, and that Mr Singh’s unspecified connections with the Shiromani Akali Dal political party in the applicant’s home town would enable him to locate the applicant anywhere in India.
26. In addition, the Board found that even if the applicant’s claims were accepted, the applicant was not persecuted for any of the Convention reasons. The harm he claimed to fear from both Mr Singh and Lalli arose only from commercial disputes over an outstanding loan and money owed to him by Lalli.
27. More importantly, the Board had provided its reasons in paragraph 52 of the Board’s Decision for a finding that it would not be unreasonable or unduly harsh for the applicant to relocate to other areas of India such as the large cities of Mumbai and Delhi to avoid any perceived risk.
28. Thus, the Board concluded that the applicant was not entitled to non-refoulement protection on any of the applicable grounds under the USM.
29. The finding of facts, including the assessment of evidence and risk of harm, was solely within the ambit of the Board in dealing with the applicant’s appeal/petition. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.
30. 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.
31. 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
32. For reasons aforesaid, the Leave Application is dismissed.
Dated the 24th day of June 2026
| |
( Gladys LEE )
for Registrar, High Court
|
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
Notes for the applicant:
If leave has been granted, the applicant or his solicitors must:
|
|
|
|
|
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
|
|
Sent/Handed to the applicant/the applicant’s solicitors on: 24/06/2026
Applicant’s ref. no:
Nil |
|
Sent/Handed to the putative respondent / the putative respondent’s solicitors / such putative interested parties as may be directed by the Court / the putative interested parties’ solicitors on: 24/06/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 15196/19/1/69/IN3004
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 5013/18
(Formerly RBCZ/10731/17)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
|