Kumar Vinod v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2309 of 2025

[2025] HKCFI 5885

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2309 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.  The extension of time for the application for Judicial Review be refused; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

THE APPLICATION

1.The applicant is an illegal immigrant and he had lodged a claim for non-refoulement with the Director of Immigration (“the Director”), who refused his claim. He appealed to the Torture Claims Appeal Board (“the Board”), which dismissed his appeal. He applied to this Court for leave for judicial review of the Board’s decision. He succeeded. The Director agreed to have his claim to be re-assessed by a Board of different constitution. There is a Consent Order dated 20 February 2023 for the re-assessment.

2.For the re-assessment, the Board notified the applicant a hearing on 18 December 2023. The applicant was absent. The Board issued a notice to require the applicant to provide it with explanation for his absence. The applicant failed to accede to the Board’s request. The Board then proceeded to assess the applicant’s appeal on the evidence and materials before it. By Decision dated 5 January 2024 (“the Board’s Decision”), the Board dismissed his appeal and affirmed the Director’s Decisions.

3.The applicant applies for leave to apply for judicial review of the Board’s Decision. His application is late. His application shall not be later than 3 months from the date of the Board’s Decision[1], which expired on 5 April 2024. His application was filed on 15 October 2025, which is late for more than 1 year and 5 months. This issue will be dealt with below.

4.The applicant did not ask for a hearing.

5.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

6.The applicant is a national of India. He sought to enter Hong Kong twice on 12 and 17 July 2015 and was refused permission to land. On 20 July 2015, he again sought to enter Hong Kong via Macau Ferry Terminal and was refused permission to land. On the same date, he lodged a non-refoulement claim.

7.The applicant claimed that, if refouled, he would be harmed or killed by Jasbir Deswal (“JD”) and his associates as he refused to join Bharatiya Janata Party (“BJP”). He also feared that the Indian police sought to frame him up for a fake alcohol case. Details of the applicant’s story can be found in the Board’s Decision. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL002309_2025_files/the_Board's_Decision.pdf.

The Director’s Decisions

8.The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

9.The Director, by Notice of Decision dated 9 September 2015 on Torture risk, BOR 3 risk and Persecution risk, and Notice of Further Decision dated 3 April 2017 on BOR 2 risk, refused the applicant’s claim for the reason that it was unsubstantiated. The Notice of Decision and Notice of Further Decision are called (“the Director’s Decisions”).

The Board’s Decision

10.The applicant appealed the Director’s Decisions to the Board. As mentioned above, the applicant was absent before the Board. The Board proceeded to consider his appeal on the evidence and materials before it.

11.Having considered the evidence and materials, the Board made the findings below.

(1)  His evidence was inconsistent and also defied logic; for examples, see paragraph 29(a)-(d). [29]

(2)  The Board therefore did not accept the core facts in support of his claim. [30]

(3)  The applicant failed to prove that he will have real risk of harm from his enemies if he returns to India. [39]

(4)  State protection will be available to him. [40]-[43]

(5)  Internal relocation is viable. [44]

12.For the reasons above, the Board dismissed the applicant’s appeal and affirmed the Director’s Decisions.

Application for leave to apply for judicial review of the Board’s Decision

13.The applicant has filed Form 86 dated 15 October 2025 for leave to apply for judicial review of the Board’s Decision. He admitted that his application is late for 22 months and has given the reasons for his delay below.

(1)  His mother was suffering from cancer, as a result of which, he was in deep mental suffering.

(2)  He was addicted to alcohol, which adversely affected his physical and mental health.

(3)  He had to move out of his place of abode and lived in public park.

(4)  He had lost all his documents and was in a depressive mood.

(5)  He was arrested by police and was detained in the CIC on 25 October 2024 for 34 months.

(6)  He is an uneducated person without legal knowledge.

14.In his affirmation in support of his application, the applicant has raised the grounds below to challenge the Board’s Decision.

(1)  The Board had not given him sufficient chance to explain his case.

(2)  He disagrees with the adjudicator on relocation being viable as he was located by the gangsters at different places in India.

(3)  His father told him that JD had fabricated a case of producing fake alcohol against him. He fears that he will be arrested if he returns to India.

(4)  He disagrees with the adjudicator that state protection will be available in India as JD and his son were able to get free for their murder of the local boys, which shows that JD is influential in India.

(5)  He further disputes the Board’s finding that the Indian government would be willing to assist him despite the finding of the COI that they are corrupt.

DISCUSSION

15.As mentioned in paragraph 3, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. I shall consider the merits of the applicant’s case.

16.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

17.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and 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.”

18.The applicant’s reasons for his delay in this application are not acceptable.

19.That his mother suffered from cancer and he was addicted to alcohol were his own personal matters due to nobody’s fault. Under the law, he has a duty to update his address with the Board, which he failed to do. Therefore, he has to take responsibility of the consequence himself. That he was detained in CIC on 25 October 2024 cannot be reason for his delay because the Board’s Decision was issued on 18 December 2023, which was before his detention in CIC. In any event, I find that there is no merit in his application for leave for judicial review of the Board’s Decision.

20.The applicant’s grounds under paragraph 13 do not assist his application. Where he failed to attend the Board’s hearing, it will not be reasonable for him to complain that it did not give him a chance to give explanation. Ground (1) fails. His allegations are that JD was influential and therefore, internal relocation and state protection would not be available to him, and he relies on the hearsay evidence from his father. This Court has no power to make investigation into the facts of his case. As mentioned in the Court of Appeal case above, the finding of facts is within the province of the Board, which had made its decision on this issue. The other grounds fail as well.

21.In the circumstances, the applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

22.I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

Dated the 23^rd day of December 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