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

HCAL 2920/2019

[2025] HKCFI 1469

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2920 OF 2019

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BETWEEN

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JUDGMENT

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 24 December 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). His application is late. His application shall not be later than 3 months from the date of the Board’s Decision[1], which expires on 24 March 2019. His application was filed on 4 October 2019, which is late for more than 6 months. This issue will be dealt with below.

2.  The applicant asked for a hearing. He appeared before the Court on 24 March 2025.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.  The applicant, aged 28, is a national of India. He was arrested by police on 29 March 2015. He admitted that he sneaked into Hong Kong from China on 28 March 2015. He raised a non-refoulement claim to the Immigration Department by a letter dated 31 March 2015 on the basis that, if refouled, he would be harmed or killed by his former girlfriend’s family due to their objection to his relationship with her.

5.  According to the applicant, he and his girlfriend, Manisha were at the same school. In mid-2014, they were seen by Manisha’s brother to be together after lunch. Her brother warned him that he was against their relationship. One day, Manisha told him that she was pregnant. Her family learned about this too. Her father disapproved of their relationship. Her brother took several people to hit him. He was hit hard by them. His head was hit by hard object and it bled. He lost consciousness. He had open wounds on his back of his head and his legs. His right leg was fractured. He had to stay in hospital for 10 days and it took 1.5 months to heal up. In a discussion over this matter with Manisha’s family, he and his father were hit with bare hands by Manisha’s brother and his people. He suffered body ache all over his body. His father suffered open wounds on his back. It took 10-15 days for recovery. In late March 2015, he left his country for China.

6.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 6 December 2017 (“the Director’s Decision”).

The Director’s Decision

7.  The Director considered the applicant’s claim in relation to the following risks:

a. risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b. risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d. risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

8.  The Director rejected his claim for the reasons: (i) there were no substantial grounds for believing that there would be any real and substantial risk of harm by Manisha’s family upon his return to India; (ii) state protection would be available; and (iii) internal relocation would be viable. [10]-[18]

The Board’s Decision

9.  The applicant appealed the Director’s Decision to the Board. On 31 July 2018, the Board conducted an oral hearing. The applicant had given oral evidence before the Board.

10.  Having considered the evidence, the Board dismissed his appeal and confirmed the Director’s Decision for the reasons: (i) the applicant was found to be an unreliable witness [84] and though the Board accepted that the applicant might have been in a doomed or illicit romance with a woman whose family did not approve of it, the Board did not accept that the woman involved became pregnant, nor that the applicant or his father were beaten up by her brother and his associates [91]; and (ii) the Board did not accept that the applicant left India for the reason claimed, and nor did it accept that he faced any real or substantial risk of serious or significant harm for those reasons if he returns to India in the reasonably foreseeable future [93].

Application for leave to apply for judicial review of the Board’s Decision

11.  The applicant has filed Form 86 dated 4 October 2019 for leave to apply for judicial review of the Board’s Decision.

12.  In his affirmation in support of his application, the applicant did not raise any specific reasons to challenge the Board’s Decision.

DISCUSSION

13.  As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. I shall consider the merits of the applicant’s case.

14.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant complained that the Board did not believe his evidence and he asked this Court to review the Board’s Decision.

15.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and 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.”

16.  It is within the province to the Board to assess his evidence. The applicant’s complaint is baseless.

17.  For the reasons the Board has given above, the Board found that the applicant will not be subjected to any of the applicable risks if he returns to his country. The applicant has not raised any valid ground to challenge the Board’s findings. There is no reason for this Court to interfere with the Board’s Decision.

18.  In the circumstances, the applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

19.  I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.