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

CACV 534/2024, [2025] HKCA 498

On Appeal From [2024] HKCFI 3325

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 534 OF 2024

(ON APPEAL FROM HCAL NO 1249 OF 2024)

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J U D G M E N T

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Hon Cheng J (giving the Judgment of the Court):

1.  This is the Applicant’s appeal against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 3 December 2024 (“the Order”) refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 24 July 2024, where the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 25 January 2016.

BACKGROUND

2.  The Applicant is a national of India. He last arrived in Hong Kong on 23 October 2015, but he was refused entry and lodged a non-refoulement claim on the same day. His claim was made on the basis that, if refouled, he would be harmed or killed by (i) two members of the Bharatiya Janata Party, namely Harvinder Kalyan (“Kalyan”) and Jaipal Sharma (“Sharma”), because he supported another political party in India and they blamed him for their loss in an election in 2010, and/or (ii) the local villagers in his home district because of the rumors spread by Kalyan and Sharma that he breached the Hindu beef ban rule. Details of the Applicant’s claim were summarised by the Judge at §§5-8 of his decision dated 3 December 2024.

3.  By a Notice of Decision dated 25 January 2016 (“the Director’s Decision”), the Director dismissed the Applicant’s non-refoulement claim with reference to the following risks: BOR 3 risk[1], persecution risk[2], and risk of torture[3].

4.  By a Notice of Further Decision dated 28 November 2016, the Director dismissed the Applicant’s non-refoulement claim based on BOR 2 risk[4].

5.  On 30 December 2016, the Applicant appealed the Director’s Decision to the Board more than 10 months out of time. On 9 March 2017, the Board refused to extend time to the Applicant to file his notice of appeal against the Director’s Decision (“the Board’s 1^st Decision”).

6.  On 11 October 2018, the Applicant applied for leave to apply for judicial review of the Board’s 1^st Decision out of time. By an order dated 25 April 2022, the Judge granted leave to the Applicant to apply for judicial review of the Board’s 1^st Decision ([2022] HKCFI 1148). On 26 June 2023, the court below quashed the Board’s 1^st Decision and ordered that the Applicant’s appeal be remitted to the Board for fresh determination.

7.  On 24 July 2024, the Board dismissed the Applicant’s appeal and confirmed the Director’s decision(s) with reference to all applicable risks (“the Board’s 2^nd Decision”). The Board’s reasons for its 2^nd Decision were summarised by the Judge at §§14 and 15 of his decision, as follows:

“[14] The Board accepted the [Applicant] might be subjectively afraid of returning to India because of the claimed past threats [43]. However, the Board found no reliable evidence suggesting that the [Applicant] would (i) be harmed by Kalyan, Sharma or the villagers upon return to India; (ii) be harmed outside his locality; (iii) suffer injury that reached the requisite level of severity and (iv) be denied state protection [44].

[15] Based on such findings, the Board concluded that the [Applicant’s] case failed to meet any of the requirements under Persecution risk, BOR 2 and BOR 3 risk or Torture risk [46]-[56], [68]-[83], [93]-[96]. Furthermore, the country of origin information also indicated the availability of state protection [57]-[65], [67] and internal relocation [84]-[92].”

THE JUDGE’S JUDGMENT

8.  On 31 July 2024, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s 2^nd Decision. The Applicant’s grounds of intended challenge, as raised in his supporting affirmation also filed on 31 July 2024, were summarised by the Judge at §18 of his Judgment (“the Judgment”) as follows:

“(1) He was not given an opportunity to forward his submissions, nor was he invited to submit written submissions to the Board.

(2) The Board had relied on source of news not officially recognized or it is simply hearsay or on outdated cases, resulting in it make speculation that it would be safe for him to return to his country.”

9.  On 3 December 2024, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:

“[19] 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 [2^nd] Decision on the [Applicant’s] appeal. The Court will not usurp the fact-finding power vested in the Director and the Board…

[20] The Court will bear in mind that the Board’s [2^nd] Decision should be examined with rigorous examination and anxious scrutiny. Before me, the [Applicant] did not make any submission to challenge the Board’s [2^nd] Decision.

…

[22] The Board, for the reasons given above, found that the [Applicant’s] claimed risks were unfounded. The [Applicant’s] reasons to challenge the Board’s [2^nd] Decision fail because Ground (1) is a non-point. He had appeared before the Board and was at liberty to make oral submissions to the adjudicator without any invitation from the adjudicator. Ground (2) is his bare assertion without any evidence in support. These reasons are not valid to challenge the Board’s [2^nd] Decision.

[23] There is no reason that the Court should interfere with the Board’s finding of the facts.

[24] The [Applicant] fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s [2^nd] Decision.”

THIS APPEAL

10.  In his Notice of Appeal filed on 6 December 2024, the Applicant stated that he did not agree with the Judge’s decision because the decision was not made properly. He also repeated his fear of returning to his home country on the ground that he would be killed by his enemies there.

11.  The Applicant has failed to lodge any written submissions in support of his appeal contrary to the directions given by the Registrar of Civil Appeals on 17 March 2025. Accordingly, he is deemed to have waived the right to have an oral hearing of his appeal and elected to have his appeal disposed of on paper. Having considered the documents before us, we consider that it is appropriate to deal with the Applicant’s appeal on paper without an oral hearing.

DISCUSSION

12.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed. The Court of Appeal’s role is not to examine the Board’s decision afresh as if it was a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(6)).

13.  Further, the assessment of evidence, country of origin information, 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: Re Kartini [2019] HKCA 1022. No such error of law or procedural unfairness or irrationality in the Board’s 2^nd Decision is shown in the present case.

14.  The Applicant has failed to identify or show any error in the Judgment refusing to grant leave to apply for judicial review, or raise any viable ground of appeal against the Order. The matters raised in the Notice of Appeal are general allegations without particulars, and do not constitute any valid grounds of appeal against the Order.

15.  The Applicant’s appeal against the Order has no merit, and is dismissed.