PUTHIYA THARAVATTIL SAJITH KUMAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE [Decision on Leave Application]

bjbj HCAL 1136/2025 [2025] HKCFI 5358 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1136 of 2025 BETWEEN Puthiya Tharavattil Sajith Kumar Applicant Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent Director of Immigration Putative Interested Party 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 Applicant being absent in open court; Order by Deputy High Court Judge K.W. Lung: The extension of time for the application for Judicial Review be refused; and The application for leave to apply for Judicial Review be dismissed. Observations for the Applicant: THE APPLICATION The applicant applies for leave to apply for judicial review of the Decision dated 20 November 2023 of the Torture Claims Appeal Board ( the Board s Decision ). However, he had wrongly put down the date of the Notice of Decision dated 3 August 2023, which is the date of the Director s decisions ( the Director s Decision ). This will be rectified. His application is late. His application shall not be later than 3 months from the date of the Board s Decision , which expired on 20 February 2024. His application was filed on 16 May 2025, which is late for more than 1 year and 2 months. This issue will be dealt with below. The applicant did not ask for a hearing. Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the decision in respect of which relief is sought is the Board s Decision dated 20 November 2023. The applicant The applicant is a national of India. He is an illegal immigrant for the reason that he came to Hong Kong as a visitor on 15 December 2022, but he overstayed since 30 December 2022. He was arrested. He lodged a non-refoulement claim on the basis that, if refouled, he will be harmed or killed by members of the Indian National Congress due to political dispute. Details of the applicant s story can be found in the Board s Decision. See hyperlink HYPERLINK "https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001136_2025_files/the_Board's_Decision.pdf" https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001136_2025_files/the_Board's_Decision.pdf . The Director s Decision The Director considered the applicant s claim in relation to the following risks: risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, ( Ordinance Torture risk ); 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 ); 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 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 ). By the Director s Decision dated 3 August 2023 ( the Director s Decision ), the Director refused the applicant s claim for the reason that it was unsubstantiated. The Board s Decision The applicant appealed the Director s Decision to the Board. On November 2023, the Board conducted an oral hearing. He had given oral evidence and answered the Board s questions. Having considered the evidence and materials, the Board made the findings below. There were discrepancies and doubts in his evidence. [42] The state was not involved and his evidence was unreliable, therefore the Board rejected it. His claim under Torture risk failed. [44] His claimed threats did not reach the threshold for BOR 3 risk. [48] He had failed to establish his claim on BOR 2 risk. [50] He had failed to establish his claim on Persecution risk. [51]-[52] State protection will be available if he returns to India. [55] Internal relocation is viable. [58] For the reasons above, the Board dismissed the applicant s appeal and affirmed the Director s Decision. Application for leave to apply for judicial review of the Board s Decision The applicant has filed Form 86 dated 16 May 2025 for leave to apply for judicial review of the Board s Decision. In his affirmation in support of his application, the applicant did not raise any specific reason to challenge the Board s Decision. DISCUSSION As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, 27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. I shall consider the merits of the applicant s case. The Court will bear in mind that the Board s Decision should be examined with rigorous examination and anxious scrutiny. 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. The applicant has not raised any valid ground to challenge the Board s findings. There is no reason for this Court to interfere with the Board s Decision. In the circumstances, the applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board s Decision. DISPOSITION I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board s Decision. Accordingly, I dismiss his application. Dated the 11th day of November 2025 (M.O. WONG)(Ms) 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 the Applicant s 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 to the Applicant on 11/11/2025 Puthiya Tharavattil Sajith Kumar Applicant s ref. no: Nil Sent 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 11/11/2025 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent s ref. no.: USM 22041 Director of Immigration Putative Interested Party s ref. no.: QA T/C 598/23 (formerly RBCZ 5000533/23) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2) Form CALL-1 Delay in applying for relief (O. 53, r. 4) (1) An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made. (L.N. 356 of 1988) (2) Where the relief sought is an order of certiorari in respect of any judgment, order, conviction or other proceeding, the date when grounds for the application first arose shall be taken to be the date of that judgment, order, conviction or proceeding. 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