Tiripathi Abhai Kumar v. Non-refoulement Claims Petition Office

HCAL 1385/2021

[2026] HKCFI 3704

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1385 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) Lewis Law:

1.   The Form 86 be amended to name (a) the Non-refoulement Claims Petition Office as the putative respondent; (b) the Director of Immigration as a putative interested party; and

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

Observations for the Applicant:

1.By a Form 86 filed on 5 October 2021, the Applicant sought leave for judicial review of the decision of the Torture Claims Appeal Board dated 19 August 2021. 

2.From a reading of the document exhibited to the supporting affirmation, it is obvious that the decision dated 19 August 2021 sought to be reviewed was actually made by the Non‑Refoulement Claims Petition Office (“the Board”) alone as the Applicant’s torture claim under the Immigration Ordinance was previously refused.  

3.The Board’s decision dated 19 August 2021 would be called “the Board’s Decision” in the following.  It was made after a hearing on 24 September 2020, which the Applicant failed to attend, of the Applicant’s petition/appeal against the decision of the Director of Immigration (“DI”) dated 21 September 2018.  A copy of the Board’s Decision can be seen by the following hyperlink[1]. 

4.The Applicant is an Indian national.  His non-refoulement claim was based on the alleged risk of harm from his brothers who had physically assaulted him and threatened his life when he refused to transfer a fertilizer licence registered in his name to them.  It was also said that their affiliation with the Bahujan Samaj Party (“BSP”), a political party, prevented the police from intervening or providing protection to him.

5.As said, the Applicant failed to attend the Board’s scheduled hearing on 24 September 2020.  The Board issued a notice the same day requiring a written explanation for his absence together with supporting documentary evidence.  The notice was sent by post to the Applicant’s last known address, but the Applicant did not submit any response.  On 6 October 2020, the Board decided to determine the appeal in the Applicant’s absence using the case materials available to the Board as per the provisions of the Board’s Petition Guide.

6.The Board subsequently issued the Board’s Decision, holding that the Applicant had failed to discharge his burden of proof that he would be harmed or killed should he return to India.  One factor the Board had regard to was that the licence document produced by the Applicant did not appear to be issued by the Government.  The Board also found his claims of a country-wide threat to be highly implausible and exaggerated, pointing to recent information that BSP had poor election results at both national/state levels.

7.The Applicant did not state in his Form 86 or supporting affirmation any ground of judicial review beyond a general assertion of ongoing danger in India.  Nevertheless, shortly before the oral hearing of this application on 20 January 2026, the Applicant submitted a letter to this Court on 15 January 2026 outlining several grounds against the Board’s Decision.  The grounds included allegations of procedural impropriety, errors/misdirection of law and a failure to properly assess his risks.

8.Although the letter is not a proper way to advance legal grounds of judicial review, this Court is prepared to address the issues raised therein for practicality’s sake.  The grounds are summarized by this Court as follows (they are not in exactly the same order in the Applicant’s letter):

(1)   the Board had failed to properly apply paragraph 2 of the United Nation’s Committee against Torture General Comment No. 2, which required State parties to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CIDTP”) to “conduct sufficient due diligence” to ensure that its reforms and means of relief have been “effective”. It was further said the Board had merely focused on whether the means of relief had shown signs of positive improvement, on which the case Re JKF (unreported, CACV 103/2014, 25 November 2014) was quoted; 

(2)   the Board had failed to conduct sufficient inquiry into the relevant country of origin conditions; 

(3)   the Board had failed to give sufficient reasons for its assessment on the Applicant’s risk of having his right under Article 2 of the Bill of Rights violated (“BOR 2 Risk”); 

(4)   the Board had failed to take into account the psychological strain and threats to the Applicant personally and the threats to kill him directly; 

(5)   the Board had failed to consider the Applicant’s still-existing fear of his enemies;

(6)   the Board had no sufficient basis to conclude that the Applicant and his family members would not be at risk of being subjected to torture and/or CIDTP.

9.Having vigorously considered the Applicant’s grounds in the aforesaid letter and heard from him in an oral hearing, this Court is of the view that none of the grounds is reasonably arguable.

Ground (1)

10.On ground (1) above, paragraph 2 of the aforesaid General Comment No. 2 is only a general statement of the State parties’ obligations under the Convention against Torture and CIDTP.  In other parts of the General Comment, there are references to the requirement for State parties to exercise “due diligence” to prevent, investigate, prosecute and punish non-State actors’ acts of torture and adopt effective measures to achieve this purpose.  However, the General Comment does not point to a specific legal approach which the Board as a tribunal deciding the Applicant’s non-refoulement claim must observe.

11.As to the case of Re JKF cited, the Court of First Instance in that case held that even if ineffectiveness of the State machinery (of the country of original of a non-refoulement claimant) in preventing domestic violence were established, there would have been still no substantial ground for believing that the claimant would be in the danger of being subjected to torture.  The Court of Appeal saw room for reasonable argument whether this general statement of the Court of First Instance was correct, and granted leave to judicial review to allow the statement to be canvassed fully in a substantive hearing.

12.In my judgment, the aforesaid authorities on a State’s obligation to prevent and combat torture and CIDTP is irrelevant to the present case.  The Board in this case held that the Applicant did not discharge the burden of proving a real risk of being harmed should he return to India.  No real risk of violation of the Bill of Rights and persecution was found to exist in the Applicant’s situation.  There was no specific finding that the State machinery of India was effective or ineffective, and the Board did not choose to focus on just positive improvement but ignore the “due diligence” requirement. 

13.In fact, the Board did identify questions related to the situation of the Indian State authorities (including its Police) to be areas of inquiries the Board wished to raise with the Applicant should he attend the scheduled hearing (see paragraph 32 of the Board’s Decision).  However, as remarked in paragraphs 33-34 of the Board’s Decision, the Applicant himself failed to show up in the Board’s hearing or provide any further written representation to impress upon the Board his positions on those questions.  In these circumstances, Ground (1) is plainly not reasonably arguable.   

Ground (2)

14.On ground (2), the Board did have access to country information collated by the DI (see paragraph 10 of the Board’s Decision).  In particular, the Board knew about the details of BSP’s election data to test the Applicant’s descriptions that his brothers possessed immense political power capable of influencing local police and tracking him throughout India (see paragraph 32(h) of the Board’s Decision).

15.An argument that the Board had failed to sufficiently inquire into country information must be firmly rejected.  In fact, the Applicant was absent from the Board’s hearing and failed to submit further country information for the Board’s consideration. 

Ground (3)-(6)

16.Grounds (3)-(6) can be dealt with together.  The Board has assessed the Applicant’s BOR 2 risk and sufficient reasons have been given.  The Applicant’s appeal/petition was dismissed because the factual foundation of his non-refoulement claim was not found to be established.  There was insufficient evidence showing the existence of a real risk.  In such situation, the assertions that the Board had failed to consider the threats against the Applicant and his fear do not have substance.

Documents Submitted During Court Hearing

17.During the oral hearing before this Court, the Applicant attempted to produce additional documents for the Court’s consideration.  These included written statements in both Chinese and English by his spouse, attesting to his good character, history of blood donation and assistance to persons in need in Hong Kong community.  However, this being a judicial review application against the Board’s Decision, the Court’s concern is only on the legality, rationality and procedural fairness of the Board’s Decision.  This Court cannot allow these proceedings to further proceed merely because the Applicant has done something good to others.

18.The leave application is accordingly dismissed.

Dated the 30^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