Nitish Sharma v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1111/2025

[2025] HKCFI 5333

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1111 of 2025

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 Applicant being absent in open court;

Order by Deputy High Court Judge K.W. Lung:

1.  Leave is granted for the applicant to apply for Judicial Review of the Torture Claims Appeal Board’s Decision dated 6 May 2025

2.  The applicant shall issue the originating summons for hearing within 14 days from the date of this Order, pursuant to Order 53, rule 5 of the Rules of the High Court.

3.  A copy of this Order be served on the Department of Justice, who shall work out the proper directions for the judicial review hearing with the applicant.

4.  Liberty to apply.

Observations for the Applicant:

The Application

1.By Form 86 dated 14 May 2025, the applicant applied for leave for judicial review of the Decision dated 6 May 2025 by the Torture Claims Appeal Board (“the Board’s Decision”), which dismissed the decision of the Director of Immigration (“the Director”) refusing his non-refoulement claim.

2.The applicant is a national of India, an illegal immigrant, having entered Hong Kong as a visitor and overstayed since 9 April 2024. He lodged a non‑refoulement claim to the Director on the basis that, if refouled, he will be harmed or killed by members of the Indian National Congress because he refused to convert from his political party to join them His enemies had attacked him, forcing him to flee India for Hong Kong. See the applicant’s story in the Board’s Decision as per hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001111_2025_files/the_Board's_Decision.pdf.

3.The Director rejected his claim. He appeal to the Torture Claims Appeal Board (“the Board”). The Board held an oral hearing for him on 27 March 2025. The Board had given the following legal advice to the applicant:

“12. The Board informed the Appellant that he was not obliged to give evidence, or answer questions, and was free to make his own decision about whether, or not, to do so.

13. The Appellant indicated that he understood what the Board had explained, and said that all of the information was contained in the NCF, and in the record of interview, and he had nothing to add.

14. The Board asked the Appellant if he was electing to rely on the information in the Hearing Bundle (“the HB”), and was electing not to give evidence, or answer questions. The Appellant confirmed that he wished to rely on the evidence contained in the HB, and that he did not want to give evidence, or answer questions relating to that evidence.

15. The Board indicated that, if the Appellant did not give evidence, it could lead the Board to form a negative view in relation to his general credibility. The Appellant indicated that he understood what the Board had explained, and confirmed that he wished to rely on the documents in the HB.

16. In the circumstances, the Board brought the hearing to a conclusion.”

4.The Board finally found that the applicant’s evidence was not credible because he had not given oral evidence to address the issues that the Board had doubts. It therefore formed the view that the applicant had fabricated the greater part of the factual basis of his claim. [61]-[65]

Discussion and conclusion

5.The Court will grant leave to the applicant to apply for judicial review of the Board’s Decision for the reasons below.

a.  The Board’s legal advice to the applicant is an error in law.

b.  Section 37ZA of the Immigration Ordinance (“the Ordinance”) provides that the applicant must provide to the Board all information relevant to the claim and make prompt full and full disclosure of all material facts in support of the claim, including any document support those facts. Section 37ZD of the Ordinance provides that the Board may take into account as damaging the applicant’s credibility if he conceals information, misleads or obstructing or delaying the handling or determination of the claim.

c.  The Board’s advice that he was free to give evidence is inconsistent with the above statutory provisions.

d.  The Board had warned the applicant that if he did not give evidence, it could lead the Board to form a negative view in relation to his general credibility. Will this warning be sufficient to address the error in law issue? In my view, it will not, because the error might mislead the applicant in making a wrong decision of not giving evidence. If the Board had given the correct directions to the applicant in accordance with the statutory provisions, the applicant should know that he must answer the Board’s questions or his credibility might be impeached. He had no option. The Board’s direction had given the applicant an impression that the Board might still believe his evidence even if he refused to give evidence for clarification for the Board. He might, therefore, answer the Board’s questions selectively, which had happened here. In my view, this is a misleading direction for the applicant, who might otherwise have answered all of the Board’s questions.

e.  The Board is under an obligation to consider all relevant matters under the advanced standards of fairness principles as laid down by the Court of Final Appeal in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187, 8 June 2004, para. 52. This also allows the Board to form a full view of the applicant’s case, not a picture selectively drawn by the applicant.

f.  The Court of Appeal in MS v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and Director of Immigration [2021] HKCA 979, Hon Barma, Au and G Lam JJA, 8 July 2021, held:

“24. … … the Board should have assessed the substantive propositions of fact and make findings on them looking at the applicant’s case in the round. See SM (section 8: judge’s process) Iran [2005] UKIAT 00116; Re Hidayah [2018] HKCA 595 at [15]; TK v Michael Jenkins & anor [2013] 1 HKC 526 at [30]-[31].”

g.  The Court of Appeal in Kulwinder Kaur v Director of Immigration and Torture Claims Appeal Board [2022] HKCA 48, held:

“44. In his oral submissions, Mr Parker argued that this duty encompasses a procedural fairness aspect that requires the Adjudicator to raise issues which may need to be dealt with, and to make it clear to the claimant that this is the position. At the lowest, the Adjudicator should not, consciously or otherwise, lead an applicant into wrongly embarking on a particular course of action, such as when considering whether or not to give evidence. In this case, we respectfully think that it is reasonably arguable that the applicant may have suffered procedural unfairness.”

h.  The Board had also not brought to the applicant’s attention the issues that it had doubts and allowed the applicant to give explanation before it formed its conclusion on his credibility.

i.  The Court of Final Appeal in Secretary for Security v Sakthevel Prabakar (2002) 7 HKCFAR 187 CJ. Li, Mr Justice Bokhary PJ, Mr Justice Chan PJ, Mr Justice Ribeiro PJ and Lord Millett NPJ, 8 June 2004 held:

“54. … It may be appropriate for the Secretary to draw attention to matters that obviously require clarification or elaboration so that they can be addressed by the person concerned. …”

j.  The Court of Appeal in Re Masud MD [2021] HKCA 1449 held:

“31. Having carefully considered the materials before this Court, we have come to the view that the Board, in coming to its decision, had not accorded the procedural fairness or high standard of fairness that the applicant was entitled to. Having decided to call an oral hearing and when such hearing was indeed held and attended by the applicant in person, all the rules of fairness that are required in an oral hearing would come into play.

32. One of such rules that may be of relevance is the rule in Browne v Dunn. The rule requires that if a cross-examiner intends to challenge a witness’s evidence on a particular point as being untruth, questions must be put to him to give him notice that his credibility on that evidence would be impeached. …

33. There is also no need to put every minute detail of the case to the witness. The question is whether the witness was given notice that some aspects of his evidence would not be accepted or his credibility in that regard would be impeached.”

Order and direction

6.The applicant shall issue the originating summons for hearing within 14 days from the date of this Order, pursuant to Order 53, rule 5 of the Rules of the High Court.

7.A copy of this Order be served on the Department of Justice to work out the proper directions for the judicial review hearing with the applicant.

8.Liberty to apply.

Dated the 19^th day of November 2025

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