Gupta Shesh Nath v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2233/2025

[2026] HKCFI 238

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2233 of 2025

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 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 applies for leave to apply for judicial review of the Decision dated 14 May 2024 of the Torture Claims Appeal Board (“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 14 August 2024.  His application was filed on 6 October 2025, which is late for more than 1 year and 1 month.  This issue will be dealt with below.

2.The applicant asked for a hearing.  He appeared before the Court on 8 December 2025.

The applicant

3.The applicant is a national of India.  He is an illegal immigrant for the reason that he entered Hong Kong as a visitor, but he overstayed since 26 May 2023.  He lodged a non-refoulement claim on the basis that, if refouled, he will be harmed or killed by Mr Yogi, the police and/or BJP supporters due to his political believes.  He was attacked and his friend was killed in India.

4.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/HCAL002233_2025_files/the_Board's_Decision.pdf

The Director’s Decision

5.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”).

6.The Director, by Notice of Decision dated 14 December 2023, (“the Director’s Decision”), refused the applicant’s claim on all applicable risks because it was unsubstantiated.

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board.  On 25 March 2024, the Board conducted an oral hearing.  He had given oral evidence and answered the Board’s questions.

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

(1)  The applicant’s evidence did not reflect the facts. [60]

(2)  He admitted that he was the driver of the car when the murder of the lawyer and 2 police escort officers took place. [70]

(3)  His fear was not a political dispute between BJP and ASPS, but his membership in the Asad criminal gang, and his participation in the murder of a prominent lawyer and his armed police escorts, who were on their way to testify against Asad’s father, Atiq Ahmed. [71]

(4)  The applicant failed to establish his claim under the applicable risks. [77]-[90]

(5)  Internal relocation is viable. [92]

9.For the reasons above, the Board dismissed the applicant’s appeal and affirmed the Director’s Decision.

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

10.The applicant has filed Form 86 dated 6 October 2025 for leave to apply for judicial review of the Board’s Decision.

11.The applicant has raised the reason below to challenge the Board’s Decision:

(1)  The Board’s Decision is wrong.

(2)  The adjudicator acted unreasonably and was procedurally unfair by placing too much reliance on the country of origin information, but failed to take his personal background and experience into account.

(3)  The Board ought to have allowed the appeal

DISCUSSION

12.As mentioned in paragraph 1, 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.

13.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.  Before me, the applicant admitted that the Board’s Decision was not wrong.  In view of his admission, the grounds under paragraph 11 have become insignificant.

14.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.”

15.The applicant has not raised any valid ground to challenge the Board’s findings.  There is no reason for this Court to interfere with the Board’s Decision.

16.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

17.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 14^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