Case Document

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HCAL 909/2026

[2026] HKCFI 4961

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 909 OF 2026

BETWEEN

	Kumar Vipin	Applicant
	and
	Torture Claims Appeal Board	Putative
		Respondent
	and
	Director of Immigration	Putative
		Interested Party

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

consideration of the documents only; or

consideration of the documents and oral submissions by the applicant or counsel in open court;

Order by Deputy High Court Judge Michael WONG:

1. On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board” and the name of the putative interested party be amended to “Director of Immigration”.

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

Observations for the applicant:

The Leave Application

1.By way of Form 86 dated and filed on 13 May 2026, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 20 April 2026 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2026/HCAL000909_2026_files/the_Board's_Decision.pdf

2.The Board found that the applicant had failed to establish a case for non-refoulement protection on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board affirmed the decision of the Director of Immigration (“the Director”) dated 10 February 2026 (“the Director’s Decision”), which rejected the applicant’s non-refoulement claim.

Amendments

3.In Form 86, the applicant named “TORTURE CLAiM APPEAL BOARD / NON REFOULEMENT CLAiM PETiTiON OFFiCE” as the putative respondents, and “DiRECTOR OF IMMiGRATiON / TORTURE CLAiM APPEAL BOARD / NON REFOULEMENT CLAiM PETiTiON OFFiCE” as the putative interested parties.

4.In fact, only the Board should be named as the putative respondent, and only the Director should be named as the putative interested party.

5.The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board and should not be named as a respondent at all.

6.Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and the name of the putative interested party to “Director of Immigration”.

The applicant’s case

7.It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

8.In sum, the applicant claimed for non-refoulement protection because if refouled to India, he would be harmed or even be killed by Pawan, the brother of his ex-wife Poonam, as Pawan and his family believed that the applicant had mistreated Poonam. The applicant also claimed that Pawan and his family were closely connected with the Bharatiya Janata Party (“BJP”).

Disposal on paper

9.The applicant did not request for an oral hearing of the Leave Application. This court is also satisfied that the Leave Application can be disposed of based on the written materials before this court. Hence, the Leave Application is dealt with on paper.

Grounds for judicial review

10.The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

11.The applicant did not advance any ground for his intended judicial review in Form 86. In his supporting affirmation dated 13 May 2026, the applicant merely stated that both the Director’s Decision and the Board’s Decision were not fair to him, his life was in danger and he was really scared if he went back to his country, as he might be killed.

Discussion

12.First of all, the Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali, [2018] HKCA 549). Thus, this court will only deal with the applicant’s challenge against the Board’s Decision, which is the only subject matter of the Leave Application.

13.The applicant’s general accusation that the Board’s Decision was unfair to him cannot help him at all. The Court of Appeal has repeatedly held that general assertions without particulars cannot be effective grounds to support a judicial review (see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; and Re Kharsu Numan [2019] HKCA 626). Further, as held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”.

14.Moreover, his danger in his home country had been duly assessed but rejected by the Board. If the applicant intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.

15.Thus, none of the matters raised by the applicant in his supporting affirmation dated 13 May 2026 can amount to any valid ground to challenge the Board’s Decision.

16.The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness, or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

17.Thus, despite the fact that the applicant did not advance any valid ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness, or irrationality as aforesaid.

18.In assessing the applicant’s appeal/petition, the Board held an oral hearing on 9 April 2026. The applicant was present and was thus given the opportunity to present his case to the Board in person.

19.The Board had laid out its assessment of the applicant’s claim in paragraphs 41 to 71 of the Board’s Decision, and it is not necessary to repeat them here.

20.In gist, the Board found no evidence to show that the applicant’s pain or suffering as a result of the capture and assault by Pawan could be considered as severe pursuant to section 37U of the Immigration Ordinance. The Board found the applicant’s claim that he received death threats from Pawan over the telephone via his family shortly after his arrival in Hong Kong was the applicant’s bare assertion unsupported by evidence. The Board also noted that the applicant was able to stay in Delhi and his hometown for a year and 3 years respectively before coming to Hong Kong, entirely undisturbed by Pawan. There was no evidence of state acquiescence in the alleged ill-treatment by Pawan. The applicant’s fear was not related to any of the Convention reasons.

21.Further, the applicant’s delay in making a non-refoulement claim led the Board to consider his account as not credible.

22.With regards to the applicant’s claim that the police would not provide assistance to him as Pawan had close connections with the BJP and that the police were corrupt, the applicant was unable to produce evidence of the alleged close connections. Furthermore, the Board found that despite the existence of corruption in India, there was objective country of origin information (“COI”) which stated that the government of India was determined to uphold the protection of human rights for its citizens through its Constitution, laws and policies. The Board considered that state protection was available for the circumstances claimed by the applicant.

23.The Board had also given full reasons in paragraphs 72 to 78 of the Board’s Decision for its conclusion that internal relocation was a viable alternative to the applicant to avoid any risk from Pawan.

24.Thus, the Board concluded that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the USM.

25.The finding of facts relating to a non-refoulement claim, including the assessment of evidence, COI and risk of harm, was solely within the ambit of the Board in dealing with the applicant’s appeal/petition. This court finds nothing wrong or unreasonable in the way the Board reached its decision.

26.Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.

27.As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

28.For reasons aforesaid, the Leave Application is dismissed.

Dated the 2^nd day of September 2026

( Gladys LEE )
for Registrar, High Court

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

Notes for the applicant: If leave has been granted, the applicant or his solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent/Handed to the applicant/the applicant’s solicitors on: 02/09/2026 Applicant’s ref. no: Nil		Sent/Handed to the putative respondent / the putative respondent’s solicitors / such putative interested parties as may be directed by the Court / the putative interested parties’ solicitors on: 02/09/2026 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative respondent’s ref. no.: USM 28204 Director of Immigration Putative interested party’s ref. no.: QA T/C 127/26 (formerly RBCZ/5002462/25) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)