Nigam Ratnesh v. Torture Claims Appeal Board
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HCAL 2244/2024 [2026] HKCFI 5827 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2244 OF 2024 BETWEEN
Application for leave to apply for judicial review NOTIFICATION of the Judge’s decision (Order 53, rule 3) Following:
Order by Deputy High Court Judge Michael WONG:
Observations for the applicant: The Leave Application 1.By way of Form 86 dated and filed on 25 November 2024, 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 17 May 2024 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:- 2.The Board found that the applicant was not entitled to non-refoulement protection on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board confirmed the decision of the Director of Immigration (“the Director”) dated 5 September 2023, which rejected the applicant’s non-refoulement claim. Amendment 3.In Form 86, the applicant named “The Torture Claim Appeal Board / Non-Refoulement Claim Petition office” as the putative respondents, when only the Board should be so named. 4.The Non-refoulement Claims Petition Office is just an office which provides administrative and secretariat support to the adjudicators of the Board and should not be named as a putative respondent at all. 5.Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”. Late application 6.By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant had to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made. 7.However, the applicant filed his Form 86 on 25 November 2024, which was more than 6 months after the Board’s Decision (made on 17 May 2024). The applicant was hence late for more than 3 months in making the Leave Application. 8.This court has to consider whether the time for the applicant to make the Leave Application should be extended taking into account of the criteria laid down in AW v Director of Immigration [2016] 2 HKC 393, which are:
9.The applicant did not make any application for extension of time and provided no explanation for the delay in making the Leave Application. 10.A delay of more than 3 months is substantial, and there is simply no reason for this court to extend the time for the applicant to make the Leave Application when no explanation was given for the delay at all. More importantly, there is no merit in the Leave Application whatsoever as discussed below. 11.Having considered the above criteria, this court is not prepared to grant any extension of time to the applicant to file the Leave Application. The Leave Application can therefore be dismissed on the ground of being made out of time alone. 12.However, for the sake of completeness, this court will still deal with the Leave Application. The applicant’s case 13.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. 14.In sum, the applicant claimed for non-refoulement protection because if refouled to India, he would be at risk of being harmed or killed by his neighbour named “AC” due to a land dispute. The applicant claimed that AC was a wealthy landlord and a local leader of the Bharatiya Janata Party (“BJP”). Disposal on paper 15.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 16.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). 17.The applicant did not advance any ground for the intended judicial review in Form 86, nor in his supporting affirmation dated 25 November 2024. He only stated in Form 86 and the said affirmation that he was not satisfied with the Board’s Decision. Discussion 18.First of all, the applicant’s mere comment that he was not satisfied with the Board’s Decision cannot help him. He did not state why the Board’s Decision was wrong or how the Board had erred in its consideration of his non-refoulement claim and/or his appeal/petition. 19.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). 20.Thus, despite that the applicant did not advance any valid ground for the intended judicial review, this court will still scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality. 21.In assessing the appeal/petition by the applicant, the Board held an oral hearing on 6 May 2024. The applicant was present and was thus given the chance to present his case to the Board in person. 22.As can be seen from the Board’s Decision, the Board gave full and detailed reasoning in rejecting the applicant’s claims. 23.The Board had laid out its consideration of the applicant’s claims and evidence in paragraphs 11 to 49 of the Board’s Decision. In gist, the Board considered the applicant’s evidence regarding the piece of land that was said to be in dispute to be vague, generic and superficial. The Board put to the applicant the numerous inconsistencies, omissions and problematic evidence that he gave at the Board’s hearing, and found that the applicant’s explanations did not allay its concerns with respect to the numerous significant discrepancies, omissions and deficiencies in his evidence that went to his core claims. 24.Considering the totality of the applicant’s claims and evidence, the Board did not accept that the claimed land dispute, or any of the claimed related incidents happened. The Board considered that the applicant contrived his claim in order to prolong his stay in Hong Kong. The Board found that the applicant and his family were and are of no adverse interest to AC, his men, BJP or anyone for any reasons. The Board considered that the applicant faced no real chance of any harm if he returned to India now or in the reasonably foreseeable future. 25.Despite its findings as summarised above, the Board had also given full reasons in paragraphs 51 to 54 of the Board’s Decision for its conclusion that the applicant could safely and reasonably relocate, for example, to Delhi, Kanpur, Punjab or another area in India without undue hardship if he wished to do so upon his return to India. 26.Thus, the Board concluded that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the USM. 27.Although the Board did not specifically made findings in relation to state protection, it did state that it did not accept that the applicant or his family reported to the police or that the police did not help them (see paragraph 57 of the Board’s Decision). 28.The finding of facts relating to a non-refoulement claim, including the assessment of evidence, country of origin information 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. 29.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. 30.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 31.For reasons aforesaid, the Leave Application is dismissed for being made out of time and devoid of merits. Dated the 21st day of October 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
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