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HCAL 388/2021
[2026] HKCFI 1723
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 388 OF 2021
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BETWEEN
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Balu Murugavel |
Applicant |
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and |
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Torture Claims Appeal Board |
Putative |
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Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
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:
1. On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, “Director of Immigration” be added as the putative interested party, and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 10 March 2021”.
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 19 March 2021, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of two decisions which were described as follows:-
“The Decision of the Director of Immigration dated 16th August 2018.
The Decision of the Adjudicator dated 10th March 2021.”
2. The Torture Claims Appeal Board (“the Board”) made a decision dated 10 March 2021 (“the Board’s Decision”) in respect of the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 16 August 2018 (“the Director’s Decision”).
3. At the oral hearing before this court on 3 March 2026, this court explained to the applicant that the Director’s Decision was superseded by the Board’s Decision and was no longer susceptible to judicial review (see Re Moshsin Ali [2018] HKCA 549). The applicant then confirmed that the Leave Application was only in respect of the Board’s Decision, which can be viewed in the following hyperlink:-
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL000388_2021_files/the_Board's_Decision.pdf
4. The Board found that the applicant’s claim for non-refoulement protection failed on all the applicable grounds (except Torture Risk[1]) under the Unified Screening Mechanism (“the USM”). Hence, the Board confirmed the Director’s Decision, which rejected the applicant’s non-refoulement claim.
5. The applicant had previously made a torture claim and the Director rejected his torture claim on 9 October 2013. The applicant did not appeal against that decision. Thus, the applicant’s Torture Risk had been finally disposed of, and it was not necessary for the Board to re-assess the same in the Board’s Decision.
Amendments
6. The applicant named both the Director and “The Adjudicator of the Non-refoulement Claims Petition office appointed to determine the Applicant’s Petition” as the putative respondents and did not name any putative interested party in Form 86.
7. In fact, the adjudicator was only making the Board’s Decision in his capacity as a member of the Board. Moreover, as only the Board’s Decision is the subject matter of the Leave Application, only the Board should be named as the putative respondent, and the Director should be named as the putative interested party.
8. 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 putative respondent at all.
9. As aforesaid, the decision in respect of which relief is sought in the Leave Application should only be the Board’s Decision.
10. Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”, to add “Director of Immigration” as the putative interested party, and to amend the decision in respect of which relief is sought in the Leave Application to “Torture Claims Appeal Board’s decision dated 10 March 2021”.
The applicant’s case
11. 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.
12. In sum, the applicant claimed for non-refoulement protection because he feared that if refouled to India, he would be harmed by Sanmugam, the leader of the western village in his home area. The applicant had attacked Sanmugam in 2006 during a dispute between the applicant’s father and Sanmugam concerning the water gate controlling the water flow to the eastern village where the applicant’s family lived. The applicant’s home village was divided between members of the lower and higher castes, with those of the lower caste living in the eastern village and the higher caste people living in the western village.
13. The applicant also feared harm from Murugesan, the candidate of the western village in the December 2006 election of village council. The applicant’s uncle won the election despite being from a lower caste. Two days after the election, six men with wooden poles and sticks attacked the election office where the applicant had been working to support his uncle. The applicant sustained minor injuries that did not require hospitalisation.
14. Nevertheless, the applicant fled India in fear of both Sanmugam and Murugesan.
Oral hearing
15. The applicant requested for an oral hearing of the Leave Application and his case was heard on 3 March 2026.
16. When this court asked the applicant to elaborate on the grounds of his intended judicial review which were stated in a document with the title “Grounds on which Relief is sought” annexed to his Form 86, he first replied that he did not remember what were written there.
17. After the document was shown and interpreted to him, he said that he was affected heavily by the ruling political party. His enemy was a rich man and powerful. Even if he went to the police to complain, the police did not register his complaint. His life was in danger because of the political leader. He was in another place in India, but they still looked for him. That was why he came here for protection. However, the applicant confirmed that all these matters had been presented to the Board.
18. The applicant then added that he has a 5 years old child in Hong Kong and he needed to stay in Hong Kong to take care of his child as the child’s mother is a domestic helper and could only come to see the child on Sundays.
Grounds for judicial review
19. 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).
20. The contents of the said document with the title “Grounds on which Relief is sought” were all very general and were in fact used by many applicants in similar applications as their grounds for applying leave to judicially review the Board’s decisions. It is like a template for such applicants and they just used the grounds stated therein without any regard to their own situations. Nevertheless, as the applicant is relying on the above grounds to make the Leave Application, this court will still deal with the grounds as discussed below.
21. As aforesaid, the applicant did not elaborate on any of the grounds stated in the said document at the oral hearing. He merely mentioned that his life was still in danger from a political leader in his country, and added that he needed to stay in Hong Kong to take care of his child. These, however, are not valid grounds for judicial review.
Discussion
22. As mentioned, all the grounds contained in the document with the title “Grounds on which Relief is sought” are very general. Some of the grounds therein were directed at the Director. As the Director’s Decision was superseded by the Board’s Decision, it is no longer susceptible to judicial review (see Re Moshsin Ali, supra). The applicant also confirmed that only the Board’s Decision is the subject matter of the Leave Application. This court will therefore consider only those grounds directed at the Board in respect of the Board’s Decision.
23. There are a total of 6 paragraphs in the said document. Paragraphs 2 and 4 of the applicant’s grounds were directed at the Director. Hence, they could not be used to challenge the Board’s Decision and can be simply ignored. Only paragraphs 1, 3, 5 and 6 of the grounds are relevant to the Leave Application.
24. In paragraph 1 of the grounds, the applicant alleged that the adjudicator of the Board reached the Board’s Decision wrongly and it was not reasonable and fair as required by the Wednesbury test. However, the applicant did not state how or why the Board’s Decision was wrong, unfair and unreasonable. It does not help the applicant to establish any ground by just mentioning the right to life in paragraph 1 either.
25. In any event, the Board did assess the applicant’s risk of right to life but concluded that there was no reason to suppose there would be any real risk to the applicant’s right to life.
26. In paragraph 3 of the grounds, the applicant alleged that the adjudicator acted unreasonably and was procedurally unfair by placing too much reliance on country of origin information (“COI”) but failed to take his personal background and experience into account. However, the applicant did not state which aspects of his personal background and experience had not been taken into account by the Board.
27. In paragraph 5 of the grounds, the applicant alleged that the adjudicator was procedurally improper and/or unfair when assessing whether to accept or not to accept explanations provided by him, and unreasonably required him to respond to questions that he was not in a position to offer any response. This accusation lacks any particulars in support. The applicant did not state which explanations he provided were not accepted by the Board and which questions he was not in a position to offer any response.
28. There was in fact nothing wrong for the Board to question the applicant extensively to try to understand his claims better and to assess his credibility and his accounts of the events leading to his claim for non-refoulement protection. The questions were necessary for the Board to fulfil its duty of finding of facts in relation to the applicant’s claim. This court finds no fault or unfairness in the Board’s questioning of the applicant at all.
29. In the same paragraph of the grounds, the applicant further asserted that the adjudicator failed to take into account the nexus of political parties and official corruption which exists in his country, making the persecution effectively persecution by the State.
30. However, the Board had explicitly found that the applicant either faced no real risk of harm in his home area or could safely and reasonably relocate to avoid it. Thus, the applicant had not established a well-founded fear of persecution.
31. Finally, in paragraph 6 of the grounds, the applicant simply alleged that the adjudicator ought to allow the appeal/petition and the Board’s Decision was irrational. There was no particulars or reasons given to say how or why the Board’s Decision was irrational.
32. The Board had in fact provided a very detailed analysis of the applicant’s claim and the reasons why the Board concluded that the applicant failed on all the applicable grounds under the USM to claim non-refoulement protection.
33. 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”.
34. Thus, none of the grounds that were contained in the applicant’s said document could establish any valid ground to challenge the Board’s Decision when they are so vague and general without any requisite particulars related to the applicant’s case.
35. The applicant’s alleged 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 a judicial review.
36. As aforesaid, the applicant’s need to remain in Hong Kong to take care of his child is not a ground for judicial review.
37. 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).
38. Thus, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any valid ground being advanced by the applicant for the intended judicial review.
39. In assessing the appeal by the applicant, the Board arranged an oral hearing on 2 November 2020 and the applicant was present. Thus, the applicant was given the opportunity to present his case to the Board in person.
40. As can be seen from the Board’s Decision, the Board did find the applicant to be a credible witness and his story was believable. The Board also found that differences of caste did exist in India and sometimes led to the kinds of issues the applicant had described in his testimony. The applicant’s non-refoulement claim was hence assessed on the basis that his account was probably true.
41. However, the Board found what the applicant had described, at its very highest, could best be said to be a minor dispute in a small rural village about a water gate and the results of a very low-level election of village leader. Both of the incidents happened more than 14 years ago at the time of the Board’s Decision, and even at that time they were not particularly significant, resulting only in a couple of brawls during which the applicant was not seriously injured.
42. The main protagonists of the incidents, namely the applicant’s father and uncle, remained in the village when the applicant fled in 2006. Even at that stage, and even accepting the applicant’s account at its highest, there was no reason for him to be more at risk than the actual participants in the key events.
43. The Board found that the applicant’s account of risk made no sense given that he was not the key protagonist at the time, those protagonists remained behind, 14 years had passed and no indication for almost a decade of any interest in him from any person in his home village. The Board found it abundantly clear that there was simply no reason for anybody in his own village to have any interest in him whatsoever, given the passage of time and his relatively minor role in the events which led to two quite insignificant brawls and nothing further.
44. Thus, the Board concluded that the risk to the applicant in his home area was far-fetched and fanciful.
45. Further, the Board had no doubt that the applicant had a safe and reasonable relocation alternative in India. There was no suggestion in any of the background information that either of the applicant’s alleged enemies had any role to play in India outside their very small rural village. Even on the applicant’s own evidence, neither of his enemies were anything other than very minor members of two political parties in that rural area of Tamil Nadu. There was no evidence whatsoever to suggest that they had any influence outside that area or that there would be any reason for the party machines of their political parties to have any motivation to pursue the applicant for any reason.
46. The Board found no reason to suppose that the applicant could not internally relocate even within Tamil Nadu. The Board also found that it would be reasonable in all circumstances for the applicant, being free of serious health conditions with twelve years of education and work experience as an embroiderer, to relocate to any one of the cities in Tamil Nadu where he could re-establish his life, find work and live a reasonably normal life.
47. Thus, the Board concluded that the applicant did not face a real risk of being subjected to any of the proscribed forms of harm under the USM upon refoulement.
48. The finding of facts, including assessment of evidence, COI and risk of harm, was solely within the ambit of the Board. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.
49. 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.
50. 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
51. For reasons aforesaid, the Leave Application is dismissed.
Dated the 25th day of March 2026
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( Teresa NG )
for Registrar, High Court
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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:
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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)).
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Sent/Handed to the applicant/the applicant’s solicitors on: 25 March 2026
Applicant’s ref. no:
Nil |
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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: 25 March 2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 13177/18/8/447/IN2625
Director of Immigration
Putative interested party’s ref. no.: QA T/C 139/08 Pt. 2
(formerly RBCZ 1361/07)
QA T/C 2035/18 (formerly RBCZ 2002541/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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