SANDEEP KUMAR v. TORTURE CLAIMS APPEAL BOARD

CACV 1087/2025, [2026] HKCA 1270

On Appeal From [2025] HKCFI 5380

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 1087 OF 2025

(ON APPEAL FROM HCAL NO 1208 OF 2020)

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BETWEEN

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JUDGMENT

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Hon Winnie Tsui J (giving the Judgment of the Court):

1.  This is the Applicant’s appeal against the order of Deputy High Court Judge Michael Wong (“the Judge”) dated 11 November 2025 (“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 5 June 2020 (“the Board’s Decision”), whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 29 August 2018.

2.  The Applicant alleges that, if refouled to India, he will be harmed or killed by the villagers of a nearby village in his home district, who were of Sikhism religion, because they believed that he had used foul language and torn up a Sikh holy book in an incident in late 2007. The Applicant’s background, the basis of his claim, the findings of the Board and its reasons for dismissing his appeal against the Director’s decision have been set out in detail in the Board’s Decision, and referred to by the Judge in the Judge’s decision (see §§1-4 of the CALL-1 Form). We do not propose to repeat them here.

3.  The Judge’s reasons for dismissing the Applicant’s leave application are set out at §§11-33 of the CALL-1 Form. In gist, the Judge held that most of the intended grounds of review advanced by the Applicant were general and vague. In any event, the Judge considered the grounds advanced by the Applicant, and was satisfied that the Board had correctly identified the issues and observed a very high standard of fairness in assessing the Applicant’s claim. The Judge detected no error of law, procedural unfairness, Wednesbury unreasonableness or irrationality in the Board’s Decision.

THIS APPEAL

4.  In his Notice of Appeal filed on 25 November 2025, the Applicant contends as follows:

(1) He suffered unfair disadvantage as a self-represented litigant in the proceedings before the Board and the Judge because he did not fully understand the legal process and procedure as well as his rights, and was unable to properly present his case without legal assistance or greater care provided to him.

(2) The Judge adopted the wrong approach by determining his leave application as if it were the judicial review, as such some of his points were not given a chance to be considered properly.

(3) The Judge failed to deal with some of the issues he raised.

(4) The Judge failed to adequately deal with his complaint that the Board erred in relying on outdated or unreliable country of origin information (“COI”).

5.  He also requests for an oral hearing of his appeal with assistance from an interpreter.

6.  The Applicant has failed to lodge written submissions in support of his appeal in accordance with the directions given by the Registrar of Civil Appeals on 29 May 2026. 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

7.  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’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)).

8.  Further, the assessment of evidence, COI, 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, at §13. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

9.  In our view, none of the Applicant’s contentions has merits.

10.  In respect of his contention of lack of legal assistance to him, the court has repeatedly held that a non-refoulement claim is not absolutely entitled to free legal representation at all stages of the proceedings relating to a non-refoulement claim. Although he had no legal representation before the Board and the Judge, the assessment of his appeal by the Board and the consideration of his leave application by the Judge were thorough and fair.

11.  The remainder of his contentions are all general assertions without particulars, and do not constitute any valid grounds of appeal against the Judge’s decision. We do not consider the Judge erred in adopting the wrong approach when considering the Applicant’s leave application. The Judge applied the correct test of whether or not it was reasonably arguable that the Applicant’s intended judicial review had any realistic prospects of success (see §33 of the Judge’s decision). The Applicant has failed to point to any specific issues which he alleges the Judge had failed to consider in dismissing his leave application. In the present case, the Judge had in fact considered the Applicant’s leave application extensively without limiting himself to the general and vague allegations put forward by the Applicant in the proceedings below. Lastly, the Applicant’s complaint directed at the Board’s consideration of the COI has no substance, and in any event relates to a matter falling within the province of the Board. We see no valid ground for intervention.

12.  In all, the Applicant’s appeal has no merit, and is dismissed.