SANJAY KUMAR v. TORTURE CLAIMS APPEAL BOARD

CACV 126/2025, [2025] HKCA 696

On Appeal From [2025] HKCFI 805

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 126 OF 2025

(ON APPEAL FROM HCAL NO 2352 OF 2024)

________________________

________________________

_________________

J U D G M E N T

_________________

Hon Chow JA (giving the Judgment of the Court):

1.  This is the Applicant’s appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”) dated 6 March 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 20 November 2024, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 16 September 2024.

BACKGROUND

2.  The Applicant is a national of India. He arrived in Hong Kong on 22 July 2024, and was refused entry. He lodged a non-refoulement claim on the same date. His claim was made on the basis that, if refouled, he would be harmed or killed by a local leader[1] (Satyavan Rana) and other supporters of the Bharatiya Janata Party (“BJP”) because he supported another political party, the India Congress Party (“INC”), and refused to join the BJP. Details of the Applicant’s claim have been summarised by the Judge at §§1-4 of the CALL-1 Form.

3.  By a Notice of Decision dated 16 September 2024 (“the Director’s Decision”), the Director dismissed the Applicant’s non-refoulement claim on all applicable grounds: risk of torture[2], BOR 3 risk[3], BOR 2 risk[4], and persecution risk[5].

4.  The Applicant appealed the Director’s Decision to the Board. On 20 November 2024, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §8 of the CALL-1 Form, as follows:

“In its decision the Board found no reliable evidence of any real intention of those local BJP supporters to seriously harm or kill the Applicant or any political reason to specifically target him given that he was just an ordinary INC supporter without any official post, and that in any event in the absence of any official involvement that state or police protection would be available to the Applicant upon his return to India as well as reasonable internal relocation alternatives for him to move safely to other parts of the country away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.”

THE JUDGE’S DECISION

5.  On 3 December 2024, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. The Applicant’s grounds of intended challenge, as raised in the Form 86 and confirmed by him at the hearing before the Judge on 23 January 2025, have been summarised by the Judge at §9 of the CALL-1 Form, as follows:

“(1) That the Board reached the decision wrongly in assessing his non-refoulement claim as the decision was not fair or reasonable as required by the Wednesbury test in failing to recognize that his life must be protected by the criminal law from extra-judicial killings that he may face if deported back to his home country;

(2) That the Board failed to appreciate or place proper or sufficient weight or importance to the presence of State Acquiescence in his case which led to an unfair outcome of rejecting his claim without realizing that he was tortured at the behest of the state law enforcement agencies and politicians that the state would be rendered liable to the Applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(3) That the Adjudicator acted [unreasonably] and was procedurally unfair by placing too much reliance on [country of origin information (‘COI’)] but failed to take into account the Applicant’s personal background and experience in assessing his claim;

(4) That the Board had listed relevant COI which supported the Applicant’s aversions that the police in his country would not be able to protect but failed to consider or give sufficient weight to such evidence and instead ruled otherwise against the Applicant’s case which was a clear case of unfair attitude shown by the Board which in itself is enough to render its decision void;

(5) That the Board failed to attain the high standard of fairness required by the Wednesbury test in failing to take into account the Applicant’s argument that corruption and incompetency of the administration in the Applicant’s country is still a very serious problem as various human rights organizations had compiled reports that stated testament to the Applicant’s assertions;

(6) That the Adjudicator was procedurally improper and unfair when assessing whether or not to accept the Applicant’s explanations and unreasonably required him to respond to questions that he was not in a position to offer any response;

(7) That the Adjudicator failed to take into account the nexus of political parties and official corruption which exist in the Applicant’s country making the persecution of the Applicant effectively persecution by the State;

(8) That the Adjudicator made a ruling to dismiss the Applicant’s appeal based on findings which the Adjudicator ought to allow and thus the decision was irrational.”

6.  On 6 March 2025, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:

“[10] These [grounds of intended challenge] are however all just bare and vague assertions of the Applicant containing a few key words or phrases but without any particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy were state acquiescence or extra-judicial killings to the Applicant’s case or what evidence is there to suggest that the Applicant has ever been tortured by law enforcement agencies or politicians when on the factual basis of even his own case that it was just a localized dispute between some rival political supporters only without any official involvement at all. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for his intended challenge.

[11] As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh…

[12] In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in his claim if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, there is simply no justification to afford him with non-refoulement protection in Hong Kong…

[13] In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

[14] For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss his application.”

THIS APPEAL

7.  In his Notice of Appeal filed on 14 March 2025, the Applicant merely stated that he disagreed with the decisions of the Director and the Board, and believed that his case had not been determined fairly.

8.  In his written submissions lodged on 14 July 2025, the Applicant complained for the first time about not being provided with legal or language assistance. He alleged generally that the Board unfairly fettered its discretion and acted in a procedurally unfair manner, and its decision was unreasonable or irrational in the public law sense and was a result of procedural errors. He also alleged that the authorities acted in a discriminatory manner towards non-refoulement claimants.

9.  At the hearing of the appeal, the Applicant stated that Satyavan Rana was still in power in the area or district of his home, and had gone to his home in India to threaten or harass his family members. He asked for permission to remain in Hong Kong for a while and said that he would go back to India when matters calmed down.

DISCUSSION

10.  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 or Director’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)).

11.  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. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

12.  The Applicant’s complaint about the lack of legal and language assistance is a new point which was not raised in his application below. He is not entitled to raise it for the first time in the Court of Appeal. In any event, it has no merit. The Applicant was assisted by the Duty Lawyer Service in relation to the assessment of his non-refoulement claim by the Director, and plainly had legal and language assistance at that stage. The Applicant confirmed that he had language assistance at the hearing of his appeal before the Board. He was also assisted by a Hindi interpreter at the hearing of his leave application before the Judge. It is well-established that a non-refoulement claimant is not entitled to free legal representation or language assistance at all stages of the assessment of his non-refoulement claim. In this regard, we note that the Form 86 and the supporting affirmation filed in the court below, as well as his Notice of Appeal and written submissions filed with this Court are all written in English. This indicates that the Applicant is either conversant with English, or has access to language assistance as needed. Further, the Applicant has failed to show that he was inhibited from advancing any particular point or ground before the Board or before the Judge by reason of the lack of legal or language assistance.

13.  The other complaints raised by the Applicant are all bare assertions without particulars, and cannot constitute valid grounds of appeal against the Judge’s decision.

14.  The Applicant has failed to identify or show any error in the Judge’s decision refusing to grant leave to apply for judicial review, or raise any viable ground of appeal against the Order.

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