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HCAL 1884/2023
[2026] HKCFI 3345
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1884 of 2023
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BETWEEN
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Prabhjot Kaur acting as the next friend for Kiran Daivik Kumar |
Applicant |
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Torture Claims Appeal Board/ |
Putative |
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Non-refoulement Claims Petition Office |
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge K.W. Lung:
1. Leave to apply for Judicial Review be refused; and
2. Non-compliance with Order 80, rule 2 of the Rules of the High Court in these proceedings be treated as a mere irregularity without rendering the Applicant’s application a nullity.
Observations for the Applicant:
THE APPLICATION
1. The next friend is the applicant’s mother (“the mother”). The applicant is now 4 years old (“the son”). The mother had made her non-refoulement claim and her application for leave for judicial review of the Board’s Decision 24 April 2019 in HCAL 1320 of 2019. The Court had dismissed her application by an Order dated 8 February 2024. See [2024] HKCFI 316. The mother did not appeal against the Court’s decisions.
2. The applicant who was born in Hong Kong in this action relies on the facts of the mother.
3. The applicant applies for leave to apply for judicial review of the Decision dated 3 October 2023 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing the appeal against the Director’s Decision as described below.
4. The applicant asked for a hearing. The mother and the applicant appeared before the Court on 20 May 2026.
The applicant
5. The applicant has a Birth Certificate dated 12 August 2021 with his status as a Permanent Resident in Hong Kong stated as “Not Established”. The mother is a national of India. She came to Hong Kong on 6 May 2015 to work as a domestic helper. Her contract terminated in July 2015, but she did not depart and overstayed since 5 August 2015. She lodged her non-refoulement claim with the Immigration Department for the reason that, if refouled, she would be harmed or killed by her family and by her husband’s family because both families did not support their marriage. The Director refused her claim. She appealed to the Torture Claims Appeal Board (“the Board”), which dismissed her appeal. She applied for leave for judicial review of the Board’s decisions. This Court dismissed her application by an Order dated 8 February 2024.
6. Details of the applicant’s claim are set out in the Board’s Decision. See hyperlink. https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2023/HCAL001884_2023_files/the_Board's_Decision.pdf
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. By way of Notice of Decision dated 25 May 2022 (“the Director’s Decision”), the Director dismissed the applicant’s claim because it was unsubstantiated.
The Board’s Decision
9. The applicant appealed the Director’s Decision to the Board. On 22 May 2023, the Board conducted an oral hearing for his appeal. He was legally represented by a duty lawyer. A government counsel represented the Director. The mother, acting as guardian of the applicant, had given oral evidence and answered questions in the hearing.
10. The Board had taken on board that the applicant’s claim should be separately considered from his parents’ cases (the Board having taken into consideration of the mother’s and the father’s cases). The Board bore in mind that there might be other risks, which the applicant may face as a minor, if he is refouled to India. [39]-[40]
11. Having considered the evidence, the Board made the findings below.
(1) Both parents of the applicant are Indian. The applicant is entitled to citizenship of India. [45]
(2) The mother did not submit any child-specific risk, which he might face should he be refouled to India. [47]
(3) The applicant’s claimed risk is that he may be harmed or killed by his parents’ families because they disapproved the parents’ marriage. [48]
(4) The mother’s evidence was rather vague, generalized and partly contradictory and even speculative. [50]-[51]
(5) The Board was not persuaded that the applicant would be liable to discrimination or ill-treatment if he returns to India. [55]
(6) There was no other child-specific issue for the applicant. [56]
12. For the reasons above, the Board dismissed his appeal and affirmed the Director’s Decision.
Application for leave to apply for judicial review of the Board’s Decision
13. The applicant has filed Form 86 dated 18 October 2023 for leave to apply for judicial review of the Board’s Decision.
14. In her affirmation in support of his application, the mother asked the Court to take into consideration that the applicant was born in Hong Kong and he may face difficulties if he returns to India where most people are Hindu.
DISCUSSION
15. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).
16. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the mother told me that last time she asked for adjournment because she wanted to hire a lawyer. But she cannot afford it. When asked if she had any child specific issue for the Court’s consideration, she said the applicant’s intelligence is below his age.
17. 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.”
18. The reasons under paragraphs 14 and 16 are not valid to challenge the Board’s findings.
19. The applicant was legally represented. The Board had taken into consideration the child-specific issues for the applicant. The adjudicator did not find any other relevant child-specific issue for the applicant. Nor does this Court find any. In the circumstances, there is no reason for this Court to intervene with the Board’s Decision.
20. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.
DISPOSITION
21. I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.
22. I shall treat non-compliance with Order 80, rule 2 of the RHC in these proceedings as a mere irregularity without rendering the applicant’s application a nullity.
Dated the 17th day of June 2026
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(Allen LEE)
for Registrar, High Court
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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 the Applicant’s solicitors must:
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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)).
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Sent to the Applicant
on 17/6/2026
Prabhjot Kaur acting as the next friend for Kiran Daivik Kumar
Applicant’s ref. no:
Nil. |
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Sent 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 17/6/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 20372
Director of Immigration
Putative Interested Party’s ref. no.: RBCL/1776/21
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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