Prabhjot Kaur Acting As the Next Friend for Kiran Kartik Kumar v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2330/2025

[2026] HKCFI 3346

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2330 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 oral submissions by the Applicant in open court;

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

1.  Leave to apply for Judicial Review be refused; and

2.  Non-compliance with Order 80, rule 2 of the Rules of the High Court in these proceedings be treated as a mere irregularity without rendering the Applicant’s application a nullity.

Observations for the Applicant:

THE APPLICATION

1.The next friend for the applicant is his mother (“the mother”). The applicant is now 2 years old (“the son”). The mother had made her non-refoulement claim and her application for leave for judicial review of the Board’s Decision 24 April 2019 in HCAL 1320 of 2019. The Court had dismissed her application by an Order dated 8 February 2024. See [2024] HKCFI 316.

2.The applicant who was born in Hong Kong in this action relies on the facts of the mother.

3.The applicant applies for leave to apply for judicial review of the Decision dated 23 September 2025 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing the appeal against the Director’s Decision as described below.

4.The mother and the applicant appeared before the Court on 20 May 2026.

5.On this Court’s own motion, Form 86 is amended to the effect that the Board is the respondent, and the Director of Immigration is the interested party.

The applicant

6.The applicant has a Birth Certificate dated 13 September 2023 with his status as a Permanent Resident in Hong Kong stated as “Not Established”. The mother is a national of India. She came to Hong Kong on 6 May 2015 to work as a domestic helper. Her contract terminated in July 2015, but she did not depart and overstayed since 5 August 2015. She lodged her non-refoulement claim with the Immigration Department for the reason that, if refouled, she would be harmed or killed by her family and by her husband’s family because both families did not support their marriage. The Director refused her claim. She appealed to the Torture Claims Appeal Board (“the Board”), which dismissed her appeal. She applied for leave for judicial review of the Board’s decisions. This Court dismissed her application by an Order dated 8 February 2024.

7.Details of the applicant’s claim are set out in the Board’s Decision. See hyperlink. https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL002330_2025_files/the_Board's_Decision.pdf

The Director’s Decision

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.By way of Notice of Decision dated 6 March 2025 (“the Director’s Decision”), the Director dismissed the applicant’s claim because it was unsubstantiated.

The Board’s Decision

10.The applicant appealed the Director’s Decision to the Board. On 16 June 2025, the Board conducted an oral hearing for his appeal. The mother, acting as guardian of the applicant, had given oral evidence and answered questions in the hearing. The Board took into consideration of the cases of the mother and the applicant’s father in another application, though the mother said that the father did not want to be involved in this application.

11.The Board had made enquiry with the mother and was told that the applicant has a medical problem of having a hole in his heart. However, he had not taken operation and his heart’s hole had closed. [44]-[50]

12.Having considered the evidence, the Board made the findings below.

(1)  The mother’s evidence in support of the applicant was hearsay or second-hand hearsay or speculation. [55]

(2)  The Board did not accept that the applicant’s grandparents of his father or his mother would harm him. [58]

(3)  Both parents of the applicant are Indian. The applicant is entitled to citizenship of India. [60]

(4)  There will not be a real chance or a real risk that the applicant would be liable to serious harm or death if he returns to India. [61]

13.For the reasons above, the Board dismissed his appeal and affirmed the Director’s Decision.

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

14.The applicant has filed Form 86 dated 18 October 2025 for leave to apply for judicial review of the Board’s Decision.

15.In her affirmation in support of his application, the mother did not raise any specific ground to challenge the Board’s Decision. She has attached a copy of the Board’s Decision to her affirmation.

DISCUSSION

16.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

17.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the mother said that she worried that her family might not accept him.

18.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.”

19.The applicant was not legally represented before the Board. The Court has made reference to the related cases HCAL 350 of 2020 (the mother’s case) and HCAL 1884 of 2023 (the elder brother’s case), although the present application is assessed independently on its own merits. I can find no other child-specific issue relation to the applicant, which was not considered by the Board because of lack of legal representation for the applicant before the Board. There is no reason that the Court should intervene with the Board’s Decision.

20.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

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

22.I shall treat non-compliance with Order 80, rule 2 of the RHC in these proceedings as a mere irregularity without rendering the applicant’s application a nullity.

Dated the 17^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