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

HCAL 138/2023

[2026] HKCFI 3140

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 138 of 2023

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) Martin Wong:

1.   The Applicant’s Form 86 be amended to name only the TCAB as the putative respondent and only the DOI as a putative interested party; and

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

Observations for the Applicant:

Introduction

1.By a Form 86 filed on 1 February 2023 (the “Form 86”), the Applicant applied for leave to apply for judicial review of a decision by the Torture Claims Appeal Board (the “TCAB”) dated 25 May 2016 (the “TCAB Decision”), which affirmed a decision by the Director of Immigration (the “DOI”) dated 24 November 2014 in refusing the Applicant’s non-refoulement protection claim.  He named both the TCAB and the DOI as proposed respondents, and named the TCAB as well as the Immigration Department as interested parties.

2.I amended the Form 86 on my own motion to name only the TCAB as the putative respondent and only the DOI as a putative interested party.

3.The Applicant requested for a hearing and he attended the same.  When asked if he had anything to add he confirmed that he had not.

4.This application is extremely out of time, by more than 6 years, and the only explanation by the Applicant in his affirmation filed in support of this application is that he was informed of the TCAB Decision a month prior to filing the Form 86, despite purporting to have been “so scared” that he missed the hearing before the TCAB.  This is totally incredible as if he was aware of his absence from the TCAB hearing and was indeed so concerned, he would not have done nothing to make enquiry as to the result of the TCAB hearing for multiple years thereafter.

5.As indeed, as it transpired, the Immigration Department had in early January 2017 invited the Applicant to submit further information for their consideration of a non-refoulement protection claim under the BOR 2 ground.  The Applicant did not respond to that invitation at all. The DOI then by a letter dated 23 January 2017 rejected any claim under the BOR 2 ground.

6.For the above reason alone, this application falls to be dismissed.  That notwithstanding and insofar as necessary, I proceeded to consider the merits of the application as below.

Background

7.The Applicant is a national of India.  He seeks non-refoulement protection on the basis that he would be harmed or killed by the family of his girlfriend due to religion-based opposition to their relationship.  His personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be assessed through a hyperlink[1], and I shall not repeat the same herein.

Discussion

8.In a judicial review, this court does not provide a further avenue of appeal.  Though in non-refoulement case an enhanced standard in scrutinizing the decision of the TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI are the primary decision-makers.  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, [14(1)]).  There must be a reasonably arguable claim with a realistic prospect of success before leave for judicial review will be granted (Peter Po Fun Chan v Winnie Cheung & Anor (2007) 10 HKCFAR 676).

9.In his affirmation filed in support of this application, apart from repeating his case and reiterating the alleged risks, the Applicant raise a number of grounds in seeking to challenge the TCAB Decision.

10.The Applicant mainly complained that he was not given adequate amount of language assistance hence he had difficulty understanding the appeal process to the TCAB and formulate grounds of judicial review even.  This is but empty assertion: not only was he able to file an appeal to the TCAB after the DOI refused his claim, he was fully informed of the hearing before the TCAB and could have sought such assistance had he attended, and he had attended the hearing before me where interpretation service was available but he had nothing to add.

11.The only other type of complaint is mere bare assertion that his case was not fairly or reasonably decided.  However, apart from citing some authorities on the principles, he offered no particulars as to which finding or conclusion, or the process in which such was reached, was wrong in law or irrational.  What is left is that the TCAB Decision was made in his absence, but as explained above and recorded in the TCAB Decision [6-7], multiple efforts were made to contact him and have him attend the hearing, all to no avail.  More importantly, the Applicant actually had acknowledged receipt of the hearing bundle [6].

12.In gist, there is nothing in the above that establishes or supports any grounds for judicial review.

13.Looking at the TCAB Decision, the TCAB bore in mind the correct principles in respect of the three grounds under the USM in question [9-15] and took into the Applicant’s case and evidence before it [16-27].

14.After thorough analysis and assessment, the TCAB came to the finding and conclusion that none of the allegations or grounds was made out [28-41].

15.I do not see any error of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.

Conclusion

16.For the above reasons, I am not satisfied that this court should intervene by way of judicial review.  I therefore dismiss the application.

Dated the 12^th day of June 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