ABDUL SAHID v. TORTURE CLAIMS APPEAL BOARD

HCAL 1871/2024

[2026] HKCFI 1453

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1871 OF 2024

Application for leave to apply for judicial review

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

Following:

	consideration of the documents only; or
	consideration of the documents and oral submissions by the applicant in open court;

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 October 2024”.

2.  Leave granted to the applicant to withdraw his application for withdrawing his judicial review case by way of his affirmation dated 6 November 2025.

3.  Leave granted to the applicant to withdraw his summons for re-opening his judicial review case dated 14 November 2025.

4.  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 18 October 2024, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of two decisions as follows:-

(1)  “Decision of Appeal / Petition With Hearing issued by the Torture Claims Appeal Board / Non-Refoulement Claims Petition office dated 10 October 2024 (18 pages in total) (Ms Susan Marie PINTO) (1^st Respondent)”; and

(2)  “Notice of Decision issued by the Director of Immigration Department dated 31 May 2024 (32 pages in total) (2^nd Respondent)”.

2.  The Torture Claims Appeal Board (“the Board”) made a decision dated 10 October 2024 (“the Board’s Decision”) in respect of the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 31 May 2024 (“the Director’s Decision”). It is clear that the first decision referred to by the applicant is the Board’s Decision, and the second decision is the Director’s Decision.

3.  At the hearing before this court on 3 February 2026, this court explained to the applicant that the Director’s Decision was superseded by the Board’s Decision and was no longer susceptible to judicial review (see Re Moshsin Ali [2018] HKCA 549).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 agreed that he did not need to have judicial review in respect of the Director’s Decision.

4.  The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2024/HCAL001871_2024_files/the_Board's_Decision.pdf

5.  The Board found that the applicant was not entitled to non-refoulement protection in Hong Kong on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board refused the applicant’s appeal/petition against the Director’s Decision, which rejected the applicant’s claim for non-refoulement protection, and confirmed the same.

Amendments

6.  The applicant named “Torture Claims Appeal Board / Non-Refoulement Claims Petition office” as the 1^st putative respondent and the Director as the 2^nd putative respondent but did not name any putative interested party in Form 86.

7.  As the applicant had confirmed that he did not need to have judicial review in respect of the Director’s Decision, 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.  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 to “Torture Claims Appeal Board’s decision dated 10 October 2024”.

The applicant’s case

10.  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.

11.  In sum, the applicant claimed for non-refoulement protection because he feared that if refouled to India, he would be harmed or killed by Firhad Hakim and Nazamuddin Shams of the All-India Trinamool Congress (“TMC”) and other persons from the TMC as he refused to change his support from the Indian National Congress (“INC”). The applicant also claimed that he owed money to banks and loan sharks in India, all of whom demanded immediate repayment from him due to political persecution from TMC.

Withdrawal and re-opening of the Leave Application

12.  The applicant filed an ex parte application by way of his affirmation dated 6 November 2025 to withdraw his judicial review case. However, by a summons together with a supporting affirmation both dated 14 November 2025, the applicant applied to re-open his judicial review case.

13.  Since this court had not dealt with the applicant’s withdrawal application, it was not necessary for the applicant to apply for re-opening of his judicial review case.

14.  At the oral hearing before this court on 3 February 2026, the applicant confirmed that there was no need for this court to deal with these two applications.

15.  Thus, this court will grant leave to the applicant to withdraw these two applications and proceed to deal with the Leave Application.

Oral hearing

16.  The applicant requested for an oral hearing of the Leave Application and his case was heard on 3 February 2026.

17.  When this court asked the applicant to elaborate on the grounds of his intended judicial review, which were stated in his supporting affirmation dated 18 October 2024, he merely repeated some of the background facts of his non-refoulement claim. The applicant also said that he wanted to stay in Hong Kong because of his medical condition. He asked this court to give him some more time to stay in Hong Kong.

Grounds for judicial review

18.  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).

19.  There were 17 paragraphs under the heading “Background” in the applicant’s supporting affirmation dated 18 October 2024, of which paragraphs 7 to 17 were the applicant’s complaints against the Director’s Decision and/or the Board’s Decision.

20.  The contents of the said paragraphs 7 to 17 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 said 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 his supporting affirmation at the oral hearing. He only repeated some of the background facts of his non-refoulement claim and said that he wanted to stay in Hong Kong because of his medical condition, which cannot be a valid ground for judicial review.

Discussion

22.  As mentioned, all the grounds contained in paragraphs 7 to 17 under the heading “Background” in the applicant’s affirmation dated 18 October 2024 are very general. Some of them 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). This court will therefore consider only those grounds directed at the Board in respect of the Board’s Decision.

23.  The applicant complained that the Board’s Decision was unfair, biased, unreasonable and irrational as required by the Wednesbury test. However, he failed to state how or why it was so.

24.  The applicant also complained that the adjudicator had not taken into account country of origin information (“COI”) which were highly relevant, but relied and put weight on COI materials which were of little or no relevance, or were outdated. However, the applicant did not specify which pieces of COI that the Board relied on or otherwise were as he asserted.

25.  His accusation that the Board had not taken his unique situation into account fairly and carefully also lacks specificity. The applicant failed to indicate what unique situation of his had been disregarded. Contrary to the applicant’s assertion, this court finds that the Board had considered his personal background and experience very extensively, especially in relation to his past experience and alleged support for INC in assessing the credibility of his claim.

26.  Similarly, his accusations that the adjudicator was procedurally improper and unfair; that the adjudicator failed to consider a consistent system of human rights violation; that the adjudicator had misdirected himself in law, etc, were advanced without any particulars.

27.  Contrary to the applicant’s assertion that the Board did not make sufficient inquiry on COI and failed to consider consistent system of human rights violation, etc, this court notes that the Board had discussed the general political situation in India, and had gone through fully-referenced COI when assessing the political situation in India and West Bengal, which was relevant to the applicant’s claim. The Board specifically mentioned in paragraph 61 of the Board’s Decision that the applicant had not claimed that there was a consistent pattern of gross, flagrant or mass violations of human rights in India, and there was no credible evidence to support any such conclusions. The applicant’s accusations in this regard are simply unfounded. Moreover, if the applicant intends to challenge the Board’s finding of facts, it is not permissible in a judicial review.

28.  Lastly, the applicant accused the decision-makers for trying to dispose of his case as quickly as possible and therefore did not carefully consider all the information and evidence available. Again, the applicant did not provide any particulars on what available information and evidence that the Board failed to carefully consider. This court notes that the Board’s hearing was held on 16 August 2024 and the Board’s Decision was made on 10 October 2024. In other words, it took the Board almost two months to consider and determine his appeal/petition, which could hardly be described as a quick disposal.

29.  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”.

30.  Thus, none of the grounds that were contained in the applicant’s supporting affirmation 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, or are completely unfounded.

31.  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).

32.  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.

33.  In assessing the appeal/petition by the applicant, the Board held an oral hearing on 16 August 2024 and the applicant was present. Thus, the applicant was given the opportunity to present his case to the Board in person.

34.  As laid out in paragraphs 53 to 58 of the Board’s Decision, the Board was not satisfied that any of the applicant’s claims were true. The Board did not accept that the applicant was threatened, harmed or his shop destroyed by any persons associated with the TMC in India. The Board also did not accept the applicant’s claims regarding the alleged loans or that he was pursued for the alleged loans because of his involvement with the INC. Thus, the Board was not satisfied that any persons from the TMC or any other persons would seek to harm him upon his return to India.

35.  The Board considered the applicant’s claims regarding his being targeted by people of the TMC, being targeted by established banks and his money lenders for repayment, etc, were far-fetched and indicative of the fabricated nature of his claims.

36.  Although the Board accepted that the applicant was involved in an accident in 2023 and suffered some injuries at that time, and that he had a heart condition, the Board did not accept that the accident or his heart problems had any connection to any involvement he might have had with the INC.

37.  The Board concluded that the applicant came to Hong Kong for reasons entirely unrelated to those he had put forward in relation to the INC and the purported harm and threats from the TMC.

38.  The Board found the applicant’s claims had been fabricated in their entirety and they were far-fetched and not credible or consistent with COI. Hence, the Board was not satisfied that there were substantial grounds for believing that the applicant would be in danger of torture, ill-treatment, arbitrary deprivation of life or persecution if he were to return to India.

39.  Thus, the Board found that the applicant was not entitled to non-refoulement protection in Hong Kong on any of the applicable grounds under the USM.

40.  The Board did not consider availability of state protection and viability of internal relocation. However, as the applicant’s claims and the matters giving rise to his claims for non-refoulement protection were rejected in their entirety, it is not necessary for the Board to consider the availability of state protection.

41.  As to internal relocation, it is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that he qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997). In other words, internal relocation only arises if the applicant has established a real risk of persecution in his home area (see Gardi v SSHD [2002] 1 WLR 2755).

42.  As it is the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm, it is not necessary for the Board to consider internal relocation.

43.  The finding of facts, including the 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.

44.  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.

45.  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

46.  For reasons aforesaid, 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