SANDEEP KUMAR v. TORTURE CLAIMS APPEAL BOARD

HCAL 1208/2020

[2025] HKCFI 5380

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1208 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.      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 June 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 5 June 2020 (“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/HCAL001208_2020_files/the_Board's_Decision.pdf

2.  The Board found that the applicant had failed to demonstrate that he was entitled to non-refoulement protection in Hong Kong on any of the available grounds under the Unified Screening Mechanism (“the USM”). Thus, the Board dismissed the applicant’s appeal/petition and affirmed the decision of the Director of Immigration (“the Director”) dated 29 August 2018 (“the Director’s Decision”), which rejected the applicant’s non-refoulement claim.

The applicant’s case

3.  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.

4.  In sum, the applicant claimed for non-refoulement protection because if refouled to India, he feared being harmed or killed by the villagers of a nearby village who were of Sikhism religion.

Oral hearing

5.  The applicant requested for an oral hearing of the Leave Application and his case was heard on 29 August 2025.

6.  When this court asked the applicant to elaborate on the grounds of judicial review which were asserted in the document titled “GROUNDS ON WHICH RELIEF IS SOUGHT” annexed to his Form 86, the applicant merely said everything was written there, and he had nothing further to say.

Grounds for judicial review

7.  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).

8.  The relevant parts of the said document titled “GROUNDS ON WHICH RELIEF IS SOUGHT” are reproduced as follows:-

“1. The Respondent is in breach of procedural fairness in the following parts:

(1) the Respondent had unlawfully fettered his discretion by refusing the applicant’s appeal on the grounds that they did not satisfy the requirement.

(2) the Adjudicator acted in a procedurally unfair manner in dealing with the Applicant’s appeal;

(3) the Respondent’s decisions to refuse the Applicant’s appeal were unreasonable or irrational in the public law sense or are a result of procedural errors or unfairness.

(4) the Respondent failed to meet the greater care and duty owed to a self-represented claimant;

…

6. The Applicant believes he was not given a fair opportunity to keep forward his submissions in an oral hearing nor he was invited to submit written submissions. When the Applicant filled in the Appeal Form, the Applicant was only asked to write grounds for appeal but that will not count as an opportunity to reply to submissions made by the representatives of the Director of Immigration.

7. Furthermore, the Torture Claims Appeal Board has significantly relied on the source of news which is not officially recognized or it is simply hearsay. They have also relied on some cases which are fairly outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations that it is safe for him to return back to his country of origin.

…”

9.  In his supporting affirmation dated 17 June 2020, the applicant asserted the same grounds as stated in paragraphs 6 and 7 of the grounds quoted above.

10.  As aforesaid, the applicant did not elaborate on any of the grounds above but chose to rely on them as his grounds for the intended judicial review.

Discussion

11.  Most of the grounds raised by the applicant are very general, vague and without any specificity. The applicant failed to elaborate on any of the grounds at the oral hearing before this court. Without the applicant’s clarification, this court can only rely on what the applicant submitted in writing to understand his case.

12.  From what the applicant has written, it seems that the applicant is alleging that:-

(1)  there was no oral hearing before the Board;

(2)  the applicant was not invited by the Board to submit written submissions and evidence;

(3)  the Board relied on unofficial source of news, hearsay and outdated cases as country of origin information (“COI”);

13.  First of all, it is not true that there was no oral hearing before the Board. The Board held an oral hearing on 6 January 2020 to assess the applicant’s appeal/petition and the applicant appeared in person.

14.  Thus, contrary to what the applicant alleged, he was given the chance to present his case and grounds of appeal to the Board in person at an oral hearing.

15.  However, the applicant did not give evidence at the Board’s hearing and he had no documents to submit for the appeal. The applicant was not willing to answer any questions from the Board. He understood that the burden of proof was on the person making the claim, and the Board would not have the benefit of hearing and considering his answers to any questions the Board wanted to put to him on his evidence, and the Board would have to make a decision on his claim based on the available evidence. The applicant did not make a final submission either, despite that his right to make a final submission was explained by the Board.

16.  Given it was the applicant’s own choice not to give evidence at the Board’s hearing, there is absolutely no basis for him to accuse the Board for failing to give him a fair opportunity to keep forward his submissions in an oral hearing.

17.  The applicant alleged that the Board did not invite him to give written submissions and evidence. However, the applicant had lodged a Non-refoulement Claim Form (“NCF”) dated 3 August 2018, which was completed with the assistance of the Duty Lawyer Service and gave details of his case. The applicant also submitted two documents in the interview with the Immigration officer. The first of which was a picture showing pages of a book, which the applicant said were the pages of the torn Sikh holy book of Sri Guru Granth Sahib mentioned in his NCF. The second was a picture of a group of people, who the applicant said were the villagers from his nearby village and were his enemies. The fact that the Board found these two pictures could not lend support to his claim that he had been assaulted and threatened by the Sikhs from a nearby village does not mean that the applicant was deprived of the chance to submit evidence.

18.  If the applicant did have further written submissions or evidence to submit to the Board, he could have done so at the oral hearing before the Board. It is the applicant’s duty to establish his claims before the Board and he should present whatever evidence and submissions, written or oral, so as to satisfy the Board that he is entitled to non-refoulement protection. It is not right to suggest that the Board has to invite him to submit written submissions and evidence before he would do the same.

19.  The allegation that the Board relied on materials and information that were unofficial source of news, hearsay and outdated cases lacks specificity. The applicant failed to identify which pieces of information and materials he alleged were wrong for the Board to rely on. On the contrary, as can be seen in the Board’s Decision, the Board did consider very extensive COI with all materials properly identified and the materials were generally up-to-date. Thus, there is simply no substance in the applicant’s allegation in this regard.

20.  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”.

21.  Thus, the general assertions put forward by the applicant, which merely contained “key words” such as the Board’s Decision was unreasonable and irrational, or that there was procedural unfairness, cannot help the applicant at all. This court finds that none of the grounds asserted by the applicant constitutes a valid ground to challenge the Board’s Decision.

22.  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).

23.  Thus, 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.

24.  As aforesaid, in assessing the appeal by the applicant, the Board arranged an oral hearing on 6 January 2020 and the applicant was present. Thus, the applicant did have the opportunity to present his case to the Board.

25.  Without the applicant’s cooperation to answer its questions and having considered all the evidence, the Board found the applicant’s evidence relating to the facts on which his claim was based amounted to questionable and unreliable evidence, and the Board did not find the evidence to his claim to be credible. On the totality of the evidence, the Board was not persuaded, even to the low standard required, that the applicant had been assaulted and threatened by Sikh people from a nearby village, or otherwise ill-treated, in India.

26.  The Board found that in all the incidents claimed by the applicant, the Sikh people from his nearby village were acting in their personal and private capacity, there was no involvement at any stage of any public officials or anyone acting in an official capacity. More than 10 years had elapsed since the claimed incident of him being accused of tearing a Sikh holy book near a Sikh temple at a nearby village. The applicant and his family had left their home village and moved to other places within the state of Punjab in India. The applicant did not meet any significant harm after he left his home village. It would be unreasonable to expect that after more than 10 years, Sikh people from his nearby village would still have any interest to go after him.

27.  Moreover, the Board was satisfied that reasonable state protection was readily available to the applicant in India if he wanted to resort to it.

28.  Further, internal relocation was a viable and reasonable option for the applicant, being an able-bodied adult with 13 years education and training as an electrician with 5 years of work experience. The Board had no doubt that the applicant should be able to make a living at a place of his choice in India, and the Sikh people from his nearby village would not have the means to find him. The applicant could relocate to cities such as Mumbai, in the state of Maharashtra, where there was little or no Sikh influence.

29.  The Board also noted that the applicant did not seek protection on his arrival in Hong Kong in December 2014 but only applied for non-refoulement protection in March 2015. After he lodged his non-refoulement claim, he was out of contact for the processing of his claim. On 13 December 2017, he was informed that no further action would be taken to process his claim. On 17 January 2018, he submitted another written signification to lodge his non-refoulement claim. Thus, the processing of his non-refoulement claim only resumed on 20 April 2018. The Board considered that the delay of the applicant in raising his claim for protection cast doubt about the true reason for his departure from his home country.

30.  Thus, the applicant’s alleged danger to his life upon return to his home country had been duly considered but rejected by the Board.

31.  The assessment of evidence, COI and risk of harm was primarily within the realm of the Board. The Board was entitled to come to its own conclusion. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

32.  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.

33.  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

34.  For reasons aforesaid, the Leave Application is dismissed.

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