MOHAMMAD JAHIR AHMED v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

1.   Form 86 be amended on the court’s own motion as follows:-

a.   the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office be named as the Putative Respondent; and

b.   the Director of Immigration be named as the Putative Interested Party.

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

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 26 March 2021 (the “Form 86”), the Applicant sought leave to apply for judicial review (the “Leave Application”) against the decision of an adjudicator of the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office (the “Board”) dated 17 March 2021 (the “Board’s Decision”).

2.  To reflect the usual practice that the Board should be the proposed respondent whereas the Director of Immigration (the “Director”) should be the proposed interested party, I make an order to amend the Form 86 accordingly on the court’s own motion.

3.  An oral hearing was requested by the Applicant. The matter first came before me on 22 December 2025 and the matter was adjourned due to the statutory stay upon the Applicant’s application for legal aid (notice of which was given by the Director of Legal Aid on 9 December 2025). In the interest of dealing with the matter, I directed that the matter be resumed on 9 February 2026 after the lapse of the stay. Both hearings were attended by the Applicant.

Background

4.  The Applicant’s background, the basis and history of his claim and the arguments he advanced had been set out in detail in the Board’s Decision, and it is not necessary for me to repeat the same here.  The hyperlink to the Board’s Decision is included below[1] for reference. As orally confirmed with me in the hearing held on 9 February 2026, the Applicant claims that his life will be in danger if he were to return to India because he failed to repay a loan to a Mr. Chandan Shah (the “Adversary”). It is alleged that the Adversary is a gangster in the Applicant’s locality and a supporter of the political party All Indian Trinamool Congress (“TMC”). The Adversary is also said to have close connections to senior leaders of the TMC.

Discussion

5.  This type of leave application is intended to be a filtering process and elaborate reasons are not necessary, see Re Zunariyah [2018] HKCA 14 at §23.  Hence, I shall set out the brief reasons for my decision below.

6.  The applicable legal principles relating to this type of applications are well established.  The judicial review is not a further avenue of appeal. Though in non-refoulement cases, the Court will adopt a high standard of fairness to review the decision of the Board with anxious scrutiny due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence, country of origin information (“COI”) materials, 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, procedural unfairness or irrationality in the decision of the Board, see Nupur Mst v Director of Immigration [2018] HKCA 524, at §14.

7.  In his affirmation in support of the Leave Application, the Applicant set out the various grounds of review which can be summarised as follows:-

(1)   He maintained that there is still a risk that he will be harmed in India by relying on reports of attacks on Muslims in India and that Muslims in India have been increasingly at risk since the Hindu nationalist Bhartiya Janata Party took power.

(2)   He referred to instances of police corruption, brutality and arbitrary arrest or detention and the lack of accountability in India.

(3)   He also claimed that internal relocation within India is restricted as he would need to obtain a special permit known as Inner Line Permit (“ILP”).

8.  I am not satisfied that the proposed challenge is meritorious:-

(1)   In relation to ground (1), I note that this is a complete change of the Applicant’s case. As set out above, the basis of the claim which was put forward before the Board was that the Applicant had a financial dispute with the Adversary (and confirmed with me in the hearing on 9 February 2026). There is simply no evidence at all that the Applicant is personally targeted because of his religious belief.

(2)   Ground (2) is an attempt to re-argue matters which have been considered by the Board. The issue of inefficiencies and corruption in the India criminal justice system was considered by the Board with reference to relevant COI (§§46-48). The Applicant has failed to point to any reviewable error in the Board’s finding in this regard.

(3)   As for Ground (3):-

(a)   There is no independent and reliable evidence to support the Applicant’s contention that he did not have freedom of movement in India due to the need to obtain the ILP. Even if the requirement exists, there is no evidence from the Applicant that he will encounter any substantial difficulty in obtaining an ILP.

(b)   Even on the Applicant’s case, the requirement to obtain an ILP only applies to travels only to certain limited “specified protected areas” but not the entire territory of India.

(c)   It is not apparent that the issue concerning the need to obtain an ILP was properly raised before the Board as there was no mention of it in the Applicant’s Notice of Appeal to the Board.

9.  In any event, having examined the Board’s Decision, the papers and the evidence with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the United Screening Mechanism; the burden of proof and standard of proof; correctly identified the issues. I do not find any error of law, procedural unfairness or irrationality.  There is nothing to indicate that the Board had failed to take into account any relevant matters or that it had taken into account irrelevant matters.  In particular, I see no reason to interfere with the Board’s factual finding that there is no genuine and substantial risk of harm that the Applicant will be subject to ill-treatment should he return to India as (amongst others) his factual account was incredible in light of the various inconsistencies and deficiencies in his evidence (§§34-35, 45).

10.  In short, I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success.  Accordingly, I refuse to grant leave for judicial review.

Conclusion

11.  In the premises, I make an order that the Form 86 be amended as described above and the Leave Application be dismissed.

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