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

HCAL 693/2021

[2026] HKCFI 209

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 693 of 2021

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following;

Order by Deputy High Court Judge (Non-refoulement Claims) Jeffrey Chau:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.By a Form 86 dated 14 May 2021 (the “Form 86”), the Applicant applied for leave to apply for judicial review against the decision by the Torture Claims Appeal Board (the “TCAB”) dated 11 March 2021 (the “TCAB Decision”)[1], which affirmed the decisions of the Director of Immigration (the “DOI”) dated 26 November 2018.

2.The Applicant requested for a hearing of this application and he attended the same.  When asked, he said that he had nothing to add.

Background

3.The Applicant is a national of India.  In gist, he fears that he would be harmed by local members of SAD in his area who demanded money from him in his shop in 2004.  He claimed that he was assaulted and injured when he told the men he was unable to pay, and did not return to his shop after this incident.  He said that the men went to his house a few days later and slapped his wife when she said that she did not know where he was, and that unknown men who he believed were sent by the SAD later assaulted him.  He moved to Dhariwal where he stayed until 2008, but began receiving threatening letters so moved again to Amritsar, where he stayed until 2012.  From 2012 until his departure for Hong Kong on 25 December 2014 he moved between Dhariwal and Amritsar.  He stated that he was not harassed again after going to Amritsar, although he claimed that he had heard from a friend that the same men were still looking for him.  The Applicant’s personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be viewed through a hyperlink[2]. I shall therefore not repeat them.  Unless otherwise specified, TCAB’s abbreviations and descriptions are adopted herein.

Discussion

4.The leave application operates as a filtering process and there is no requirement or expectation to give elaborate reasons for my decision: Re Zunariyah [2018] HKCA 14 at [23].  It is sufficient to state my observations after considering the TCAB Decision and the materials adduced by the Applicant.

5.I remind myself that in a judicial review, this court does not provide a further avenue of appeal.  While I also remind myself that in non-refoulement cases, I would adopt an enhanced standard in scrutinizing the decision of the TCAB given the seriousness of the issue at hand, this court would not usurp the role of the TCAB, which together with the DOI are the primary decision-makers. A finding of fact is exclusively within the realm of the TCAB, and this 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 TCAB: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].  There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

6.In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (unreported, HCAL 21/2015, 22 December 2016) at [142], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

7.The Applicant did not state any grounds on which the relief is sought, and hence did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision in the Form 86.

8.As can be seen from the TCAB Decision, the TCAB took into account all the evidence available and found that on the basis of the same, applying the correct legal principles in respect of all applicable grounds under the Unified Screening Mechanism, the Applicant’s allegations were insufficient to make out any of the applicable grounds [30-35].  In particular, the TCAB found that even if the Applicant’s claim to have been assaulted and threatened by SAD members in 2004 were accepted as credible, his claims concerning his fear of violence at the hands of these SAD members because of his activities on behalf of SAD should he return to India was either greatly exaggerated or completely untrue. Relevantly, he was able to live safely in India without encountering these people at all for more than ten years after the incidents in 2004.  Accordingly, the TCAB found that he had established no basis for his claims to fear serious harm should he return to the Punjab now [28, see also 22-26].  This finding is compelling and unimpeachable.

9.All in all, I do not see any errors of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.  The Applicant’s intended challenge to the TCAB Decision is not reasonably arguable, and accordingly the application for leave to apply for judicial review is dismissed.

Dated the 13^th day of January 2026

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