RENGASAMY BALAKUMARAN v. TORTURE CLAIMS APPEAL BOARD

HCAL 2482/2024

[2026] HKCFI 1422

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2482 OF 2024

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

1.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board” and the name of the putative interested party be amended to “Director of Immigration”.

2.  The applicant’s application to withdraw the application for leave to apply for judicial review be refused.

3.  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 16 December 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 4 December 2024 (“the Board’s Decision”).  The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2024/HCAL002482_2024_files/the_Board's_Decision.pdf

2.  In the applicant’s affirmation dated 16 December 2024, he mentioned that he was applying for leave to apply for judicial review against the decision of the Director of Immigration (“the Director”) dated 4 September 2024 (“the Director’s Decision”) as well as the Board’s Decision.

3.  Since the Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali [2018] HKCA 549), the subject matter of the Leave Application should only be the Board’s Decision.  In any event, as the applicant did not include the Director’s Decision in his Form 86, this court will only deal with the Board’s Decision in the Leave Application.

4.  The Board found that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”).  Hence, the Board rejected the applicant’s appeal/petition against the Director’s Decision and confirmed the same.

Amendments

5.  In Form 86, the applicant named both the Board and the Director as the putative respondents and the Board as the putative interested party but spelt the Board’s name wrong.

6.  In fact, the Board and the Director should be named as the putative respondent and the putative interested party respectively.

7.  Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and the name of the putative interested party to “Director of Immigration”.

The applicant’s case

8.  The applicant claimed for non-refoulement protection because if refouled to India, he would be harmed or killed by his girlfriend’s father.

Withdrawal of the Leave Application

9.  Before the Leave Application was dealt with, the applicant filed an ex parte application by way of his affirmation dated 26 November 2025 to withdraw the Leave Application.  

10.  As stated in the applicant’s said affirmation, he wanted to withdraw his Leave Application because he wanted to go back to his country India.  However, he did not indicate that it was safe for him to return or his problems in his home country had been resolved.  

11.  There is no evidence to show that the applicant made the withdrawal application other than out of his own volition.  With this withdrawal application, it is clear that the applicant no longer wishes to proceed with the Leave Application or any oral hearing of the Leave Application even though he had previously requested one.

12.  However, the Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 that:-

“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

13.  Thus, it is not right to leave the action at large.  The applicant’s application to withdraw the Leave Application is therefore refused and this court will proceed to deal with the Leave Application.

Grounds for judicial review

14.  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).

15.  However, the applicant did not advance any grounds for his intended judicial review in Form 86, nor in his supporting affirmation dated 16 December 2024.

Discussion

16.  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).

17.  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.

18.  In assessing the applicant’s appeal/petition, the Board arranged an oral hearing on 15 November 2024 and the applicant was present.  Thus, the applicant did have the opportunity to present his case to the Board in person.

19.  As can be seen in the Board’s Decision, the Board found that the applicant was only attacked once by his girlfriend’s father and the injury he suffered was not serious.  His girlfriend’s suicide and the subsequent threat of killing him by his girlfriend’s father as a result of his girlfriend’s death was purely hearsay without evidence in support.  Similarly, the applicant’s assertion that his home in India had been set on fire was again hearsay.  It was only the applicant’s speculation that it was done by his girlfriend’s father.

20.  The Board found that the ill-treatment inflicted upon the applicant by his girlfriend’s father did not reach the threshold of torture as defined in section 37U of the Immigration Ordinance nor a minimum level of severity.  The dispute with his girlfriend’s father was a personal dispute and was unrelated to any of the Convention reasons.

21.  Further, the Board found that the applicant did not seek assistance from the police in India regarding the attack by his girlfriend’s father.  While it was true as revealed in the country of origin information (“COI”) that inefficiency and corruption was not uncommon amongst the police force as well as other government officials in India, it was also true that there had been reforms going on in India to improve the efficiency and to combat corruption of the police force.

22.  Moreover, the Board noted from the applicant’s own evidence that he encountered no trouble from his girlfriend’s family at all when he was staying in Chennai and Delhi before he departed India.  The Board found no evidence that his girlfriend’s father, who was a farmer and moneylender in India, had the power and influence or the resource to locate the applicant had he moved to stay in other parts of the country.  The Board found that the applicant, being young with education up to college level and 3 years of work experience, would have no difficulty to survive in another city in India to avoid any perceived risks from his girlfriend’s father.

23.  Thus, the Board found that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the USM.

24.  The assessment of evidence, COI and risk of harm was primarily within the realm of the Board.  The Board was entitled to come to its own conclusion.  This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

25.  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. 

26.  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

27.  For reasons aforesaid, the application to withdraw the Leave Application is refused and the Leave Application is 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