Re Subramani Arunkumar

CACV 772/2026, [2026] HKCA 1843

On appeal from [2026] HKCFI 3723

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 772 OF 2026

(ON APPEAL FROM HCAL NO. 1603 OF 2025)

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J U D G M E N T

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Hon K Yeung JA (giving the Judgment of the Court):

Introduction

1.This is the applicant’s appeal against the decision of Deputy High Court Judge K.W. Lung dated 17 July 2026[1] (the “Judge” and the “Judge’s Decision”) refusing the applicant’s application for leave to apply for judicial review.  The intended judicial review was against the decision dated 12 June 2025 of the Torture Claims Appeal Board (the “Board” and the “Board’s Decision”) dismissing his appeal against the decision dated 19 March 2025 of the Director of Immigration rejecting the applicant’s non-refoulement claim (the “Director” and the “Director’s Decision”).

Background

2.The applicant is a national of India born in 1997.  He last arrived in Hong Kong on 26 May 2024.  He was permitted to remain in Hong Kong as a visitor until 9 June 2024.  He did not depart and overstayed from 10 June 2024.  He surrendered himself to the Immigration Department on 14 June 2024.  On 11 November 2024, he lodged a non-refoulement claim form.  His claim was assessed on all risks: torture risk[2], BOR 3 risk[3], persecution risk[4] and BOR 2[5] risk grounds.  His claim was made on the basis that if refouled to India, he would be harmed or killed by Kumaresan, a powerful politician and community leader, due to an inter-caste love affair he had with Kumaresan’s daughter, Poornima.  The applicant claimed that Kumaresan and his associates disrupted their marriage ceremony and assaulted him.  Poornima was later forced to marry her maternal uncle, Sarawanan.  Both men have continued to pursue and threaten the applicant and his family, as they believe that the applicant remains in contact with Poornima.

3.In the Board’s Decision, the Board set out in detail the applicant’s background, the basis of his claim and the Board’s reasons for rejecting his appeal[6]. In gist, the Board found that the applicant’s claim was fabricated in their entirety[7]. The Board identified significant inconsistencies between the applicant’s written claim and his oral evidence.  The matters those inconsistencies related to included his relationship with Poornima[8], the attacks he claimed to have had before and after Poornima’s marriage to Sarawanan, and the temple wedding incident[9]. The Board found his evidence vague and unpersuasive.  The Board gave no weight to the photographs the applicant provided, as they did not establish the identity of the woman or any relationship he claimed[10].  The Board concluded that the applicant was not able to substantiate his claim under any of the applicable grounds and dismissed the appeal.

4.By a Form 86 filed on 15 July 2025, the applicant applied for leave to seek judicial review of the Board’s Decision.  He did not provide any ground for seeking relief whether in the Form 86 or in his supporting affirmation.  He did not request for a hearing.  By a Form CALL-1 dated 17 July 2026, the Judge dismissed the applicant application.  In gist, the Judge held that given the Board’s rejection of his evidence, the applicant had no factual basis to support his claim.  The Judge also noted that the applicant had failed to raise any grounds to challenge the Board’s findings.  The Judge held that the intended judicial review had no realistic prospect of success. 

Appeal to this Court

5.On 27 July 2026, the applicant filed his Notice of Appeal against the Judge’s Decision.  He states that he disagrees with the decisions of the Judge, the Board and the Director, as those decisions “makes [sic.] me liable to Remove from Hong Kong to a Risk State in my home country where my life is not safe.”

6.The applicant on 9 September 2026 lodged his written submissions.  He submits that: (1) the Board’s and the Director’s Decisions were unreasonable, irrational and unfair; (2) he may face extrajudicial killing in India and should be entitled to protection and right to life; (3) the Board placed too much weight on country of origin information instead of the applicant’s personal background and experience, and had relied on sources of news that were not officially recognized; and (4) the Director had failed to consider or give weight to evidence supporting his stance on the lack of police protection and the presence of state acquiescence.  

7.At the hearing, the applicant indicated that he had nothing to add to his written submissions.

Discussion

8.In assessing the merits of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal.  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.  In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

9.We would first make some overall observations about the grounds and arguments raised by the applicant in this appeal.  Firstly, none of them were raised in the application before the Judge.  It is established law that it is not open to an appellant to rely on grounds that were not argued in the court below, especially when they are fact-sensitive: Flywin Co. Limited v Strong & Associates Limited (2002) 5 HKCFAR 356 at [37]-[39].  Secondly, insofar as the applicant is seeking to do so, it is not open for him to seek to challenge the Director’s Decision in this appeal.  The Director’s Decision had been superseded by the Board’s Decision.  It was no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549.  This appeal will not address the arguments in relation to the Director’s Decision.  Thirdly, the applicant’s arguments are mostly general assertions that bear no relevance to the facts of his claim, and are not borne out by the circumstances of his case.  Fourthly, the applicant’s arguments do not engage the Judge’s reasons for refusing his application, and are also not related to the Board’s reasons for dismissing his appeal against the Director’s Decision. 

10.In the present case, the Board’s rejection of the applicant’s claim was based principally on credibility grounds.  Although the Board did refer to some other materials contained in the hearing bundle, the Board’s substantive reasoning did not hinge upon those materials.  For the reasons which it gave, the Board was entitled to find on the evidence that the applicant’s entire case was fabricated.  Before the Judge, the applicant failed to point to any specific error or impropriety in the Board’s reasoning, nor to any procedural irregularity.  His intended judicial review is bound to fail. 

11.We are satisfied that the Judge had given proper and adequate reasons for his holding that the intended judicial review had no prospect of success.  There is no proper basis for us to disturb the Judge’s Decision.  The applicant’s appeal has no merits.  We dismiss the appeal.

The applicant, unrepresented, acted in person.

[1]  [2026] HKCFI 3723.

[2]  This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[3]  This refers to risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[4]  This refers to the risk of persecution with reference to the non‑refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[5]  This refers to the risk of being arbitrarily deprived of life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[6]  https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001603_2025_files/the_Board's_Decision.pdf

[7]  §§49 and 54 of the Board’s Decision.

[8]  §50 of the Board’s Decision.

[9]  §§51 and 52 of the Board’s Decision.

[10]  §55 of the Board’s Decision.