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

HCAL 163/2026

[2026] HKCFI 2420

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 163 of 2026

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following;

	consideration of documents only;          or
	consideration of documents and the Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 14 January 2026 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 22 December 2025 dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision (“Notice”) dated 6 November 2025 refusing his application for non-refoulement protection. 

2.  The Applicant had requested an oral hearing.  A hearing on 23 February 2026 was scheduled and notice of hearing was sent to him by post on 30 January 2026 to his address as stated in his Form 86, ie Castle Peak Bay Immigration Centre (“CIC”) where he was then detained.  The notice has not been returned through the post.  There is also nothing to suggest that he had not received the notice of hearing.   On 10 February 2026, the Court was informed by the Immigration Department that he was released from custody on 6 February 2026 and moved to an address in Yau Tsim Mong District.  Although the Applicant must have received the notice of hearing sent to him on 30 January 2026 before his release from CIC, a copy of the notice of hearing was also sent to him by post to his address in Yau Tsim Mong on 22 February 2026.  An attempt had been made at noon on 20 February 2026 to contact him by telephone to remind him of the hearing, but the telecommunication provider advised that the telephone number had not been registered for service.  The Court was satisfied that the notice of hearing had been duly served on the Applicant and that the Court had tried its best endeavour to bring the hearing to his notice.  However, he did not appear at the hearing.  Having considered the nature of the application and issues raised, the Decision, the papers, the applicable legal principles and all the circumstances, the Court considered that the leave application may be justly determined on paper without an oral hearing.

Background

3.  The Applicant is an Indian national, now aged 42.  He arrived in Hong Kong on 27 November 2023 and overstayed since 12 December 2023.  He surrendered to the Immigration Department on 25 July 2025 and raised a non-refoulement claim by written signification on 3 September 2025.  In due course, his claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. His claim was rejected by the Director’s Notice.  His appeal against the Notice was dismissed by the Board’s Decision.  He now applies for leave to apply for judicial review of that Decision.

The Applicant’s case

4.  The Applicant’s personal background, the basis of his claim, the arguments he advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision.  The hyperlink to the Board’s Decision is included below[5] for reference.  In gist, he claims he will be harmed or killed, if returned to India, by a property developer because of a land dispute.

5.  The Applicant’s grandfather transferred his farmland to his two sons, ie the Applicant’s father and the Applicant’s uncle without specifying which part of the land was to be transferred to the father and which part to the uncle.  Throughout the years, the father’s family and the uncle’s family shared the land based on mutual agreement that it was split into two halves in the middle of one side so that one side of each portion of the land was adjacent to the main road.  The Applicant’s father passed away in July 2025. The Applicant and his four siblings inherited half of the land.  In early 2007, unknown to the Applicant his uncle unilaterally divided the land by splitting it into two halves at the middle of another side of the land, apportioned the portion adjacent to the main road (the “sold land”) to himself and sold it to the property developer.  Ten days later, the property developer claimed ownership of the sold land and warned the Applicant and his family not to interfere with their use of the sold land.  The Applicant’s family filed a case with the Tahsil Office responsible for land matters which issued an order restraining the Applicant’s family and the property developer from using the land until the case was finalized.  In mid 2007, two unknown men went to the Applicant’s family house and threatened to kill the Applicant unless he withdrew the case from the Tahsil Office.  Out of fear, the Applicant fled India for Thailand.  He returned to India in 2009 as he believed the property developer may have faded out from the land dispute.

6.  In 2016, the Tahsil Office finalized the case in favour of the Applicant’s family and ordered the land to be split into two halves in the same manner as it was shared between the Applicant’s and the uncle’s family. Nothing eventful happened until May 2023 when the property developer and four unknown men came to the Applicant’s house and demanded the land be split as was agreed between the property developer and the Applicant’s uncle.  The Applicant refused.  The property developer and his men beat him with sticks for a few minutes.  When they left, the property developer threatened to kill the Applicant if he insisted not to follow his instruction.

7.  The Applicant went to the hospital for treatment and was discharged on the same day.  He then went to the Barhalganj police station with the intention to make a report regarding the attack.  Upon arrival, he saw the property developer and the four unknown men.  They threatened to kill him if he made a report.  He left.  He arranged his family to move to Lucknow and then he fled to Hong Kong, while his father stayed behind.            

The finding of the Board

8.  The Board considered the Applicant’s testimony before it consistent with his evidence in the non-refoulement claim form and screening interview.  It seemingly assessed his claim on the basis of the Applicant’s case as he asserted.  It found the dispute between the Applicant and the property developer was private in nature in which the government of India was not involved.  It found the alleged threats did not arise on account of race, religion, membership of a particular social group or political opinion.  It did not accept the ill-treatment inflicted on the Applicant attained a minimum level of severity.  It was not satisfied that the incidents could have caused the Applicant any real fear.  It found on the basis of credible country of origin information that state protection is available.  It also found the Applicant’s fear was not well-founded.  It found it difficult for the property developer to locate him throughout India and that internal relocation is feasible to mitigate or avoid the risk of harm from the property developer.

9.  Applying the law applicable to the non-refoulement protection under the USM to the evidence available, the Board found that the Applicant had failed to establish the factual basis to support his claim for protection under any of the applicable grounds under the USM.  Hence, it dismissed his appeal against the Director’s Notice.

Legal principles applicable to judicial review

10.  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[6].

Grounds for judicial review

11.  The Applicant made the following five points in his supporting affirmation presumably as his grounds in support of his leave application:

(a)   the Applicant is a genuine non-refoulement claimant facing dangerous problems, harassment and torture in his home country:

(b)   that the Director reached the wrong decision in rejecting his claim without making proper inquiry and he invited the Director to send his immigration officers to tour India to study the situation there;

(c)   that if he did not flee India, he would have been killed;

(d)   for the above reasons, leave to apply for judicial review should be given; and

(e)   he asks for leave to be granted. 

12.  Point (a) asserts that the Applicant is a genuine asylum seeker entitled to non‑refoulement protection.  As the Board found he is not entitled to protection, this is a direct challenge of the Board’s finding of fact which is not permissible. 

13.  Point (b) is directed at the decision in the Director’s Notice, which had been superseded by the Board’s Decision and is therefore not reviewable.  Even if it is assumed that this point is directed at the Board, it discloses no particulars of the Board’s errors.  As for the Applicant’s suggestion of the Director sending immigration officers to the Applicant’s home country to make investigations, it is clearly impracticable.  The officers also have no authority to carry out investigations in India.  Furthermore, it could not have been the intention of any court laying down the high standard of fairness that such standard requires the decision maker to make an in situ investigation whether of the claimant’s claim or the general human rights situation in the risk state.  In this Court’s opinion, the high standard of fairness is met by the decision maker making adequate researches into available and credible country of origin information (“COI”).  This Court is also satisfied that this standard has been discharged in this case.  The Board had considered COI from authoritative and credible sources when considering availability of state protection and internal relocation.   

14.  Point (c) is a direct challenge of the Board’s finding of fact which is not permissible, save for errors of law, procedural unfairness or irrationality in the Decision. 

15.  Points (d) and (e) are the relief sought.  They are not supported by particulars.  

16.  All these points are lacking in particulars.  None of them could be valid grounds of application.  In the absence of proper grounds or grounds with adequate particulars, the Court in an application for leave to apply for judicial review could only focus its attention on these elements in its anxious scrutiny of the Decision.

Overall scrutiny

17.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  The Board assessed the Applicant’s claim on the basis of the factual case as he asserted.  It analysed the evidence carefully, tested it against common sense and inherent probability.  On the basis of the Applicant’s evidence and credible COI, the Board made some further finding of fact, such as that the ill-treatment did not attain the minimum level of severity, that the dispute between the Applicant and the property developer was a private land dispute in which the government of India is not involved, etc.  It was on that basis that the Board found the Applicant had failed to establish the factual basis to support his claim for non-refoulement protection under any of the four applicable grounds under the USM. This is a finding of fact, which is exclusively within the realm of the Board, which the Court on a judicial review will not interfere, save when such finding was made as result of error of law or procedural unfairness or irrationality in the Decision.  The Court could detect no error of law or procedural unfairness in the Decision.  The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational.  Basically, the Applicant had failed to discharge his burden of proving his fears and risks.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success.

Conclusion

18.  For the above reasons, the Applicant’s leave application is refused.

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