UBAIDURRAHMAN v. TORTURE CLAIMS APPEAL BOARD

HCAL 50/2026

[2026] HKCFI 4268

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 50 OF 2026

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”.

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 5 January 2026 and filed on 6 January 2026, 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 29 December 2025 (“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/2026/HCAL000050_2026_files/the_Board's_Decision.pdf

2.  The Board found that the applicant had not made out a case for non-refoulement protection in Hong Kong on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Thus, the Board dismissed the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) and confirmed the same, which rejected the applicant’s non-refoulement claim.

Amendment

3.  In Form 86, the applicant named “Torture Claims Appeal Board / Non-refoulement Claims Petition Office” as the putative respondent, when only the Board should be so named.

4.  The Non-refoulement Claims Petition Office is just an office which provides administrative and secretariat support to the adjudicators of the Board and should not be named as a respondent at all.

5.  Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”.

The applicant’s case

6.  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.

7.  In sum, the applicant claimed for non-refoulement protection because if refouled to India, he would be harmed, ill-treated or killed by his paternal uncle named Abdul Kalam and/or his four sons (collectively “the Enemies”) due to a land dispute.

Oral hearing

8.  The applicant requested for an oral hearing and his case was heard on 14 July 2026. The applicant confirmed that he would rely on the document annexed to his Form 86 with the title “Grounds on which Relief is Sought” as his grounds for the intended judicial review.

9.  When this court asked the applicant to elaborate on the grounds stated in the said document, the applicant only said that he could not go back as he had some issues and problems in his home country, he also wanted to go back but he asked this court to give him some more time, maximum 6 months, and if his issues were resolved, he would go back.

Grounds for judicial review

10.  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).

11.  The applicant attached a document with the title “Grounds on which Relief is Sought” to his Form 86, which contained 8 paragraphs of general accusations. The grounds, as summarised below, are numbered according to the paragraph numbers in the said document:-

(1)  The Board failed to adequately consider and give proper weight to the applicant’s evidence, including his record of interview and oral statement;

(2)  The Board failed to adequately consider the evidence of past threats, assaults and harm suffered by the applicant, which are relevant indicators of a real risk of future persecution or harm;

(3)  The Board improperly concluded that internal relocation within India was a reasonable and safe option for the applicant without adequate individualized assessment of the specific risks he faced;

(4)  The Board failed to recognize that the applicant’s fears were objectively reasonable given the context of land disputes and familial conflicts in India, compounded by the applicant’s vulnerability and previous threats;

(5)  The Board did not adequately assess whether there were “substantial grounds for believing” or “a real risk” that the applicant would face persecution, torture, or ill-treatment if returned. The Board relied heavily on generalized country information and statistics about India’s systemic corruption and policy efficacy, rather than focusing sufficiently on the specific facts and credible evidence relating to the applicant’s individual case, including his direct experiences and threats;

(6)  The Board failed to consider the severity of the alleged threats and violence. The incident involving threats and intimidation, although not resulting in physical injury, must be evaluated in light of the high threshold for inhuman or degrading treatment and the risk of torture;

(7)  The decision was unreasonable and irrational because it involved a manifestly flawed assessment of the evidence, a failure to properly apply relevant legal standards, and a disregard of the applicant’s credible testimony and evidence of threats. The decision did not meet the high standard of fairness and reasonableness required under administrative law; and

(8)  The decision-maker failed to give the applicant a fair opportunity to clarify or address inconsistencies in his evidence, or to adduce additional evidence to support his claims. The decision was made without proper consideration of all relevant facts, in breach of the principles of natural justice and procedural fairness.

12.  As aforesaid, the applicant did not elaborate on any of the above at the oral hearing before this court. He only said that he could not go back because the issues and problems in his home country had not been resolved and he requested to stay in Hong Kong for 6 more months.

Discussion

13.  First of all, the contents of the document titled “Grounds on which Relief is Sought” as summarised above, are all very general.

14.  In Ground (1), the applicant did not identify which parts of his evidence, including his record of interview and oral statement, were not adequately considered by the Board. Similarly, he did not specify in Ground (2) how the Board had failed to adequately consider the experience of past threats, assaults and harm suffered by the applicant.

15.  Contrary to the applicant’s assertions in these 2 grounds, it is evident from paragraphs 8 and 27 to 37 of the Board’s Decision that the Board was clearly aware of all the applicant’s evidence, including those put forward in his Non-refoulement Claim Form (“NCF”), his record of interview, his Notice of Appeal/Petition and his oral evidence at the Board’s hearing.

16.  The Board had explicitly stated in paragraph 38 of the Board’s Decision that it had considered all the available evidence and the relevant country of origin information (“COI”) and had carefully considered the applicant’s story as a whole and in the round in the assessment of his credibility. This court also notes from paragraphs 39 to 43 of the Board’s Decision that the Board adopted the correct principles in its assessment of the applicant’s claim and its credibility.

17.  As to the applicant’s complaint in Ground (3) that the Board improperly concluded that internal relocation within India was a reasonable and safe option for him without adequate individualized assessment of the specific risks he faced, the Board had given its full reasons in paragraphs 49 to 53 of the Board’s Decision for its finding that internal relocation within India was a viable option for the applicant.

18.  The Board’s conclusion on the viability of internal relocation was based on its findings that: (1) the applicant’s risk from the Enemies was localised; (2) there was no sufficient evidence to suggest that the Enemies would be able or willing to search throughout India to locate the applicant; (3) there was insufficient evidence to suggest that the Enemies would be able or have the real intention to use the resources/manpower to locate him in any of the large cities identified by the Board; and (4) given the applicant’s profile, including his age, work experience, educational level and language ability, it would not be unreasonable and/or unsafe for him to relocate to Mumbai, Bengaluru or Delhi (or another city sufficiently distant from the applicant’s home area).

19.  This court finds that the Board’s conclusion on the viability of internal relocation for the applicant was fully justified.

20.  The applicant’s allegations in Grounds (4), (5) and (6), namely that the Board failed to recognize that his fears were objectively reasonable, that the Board did not adequately assess whether there were “substantial grounds for believing” or “a real risk” that the applicant would face persecution, torture, or ill-treatment if returned, and the Board relied heavily on generalized country information and statistics about India’s systemic corruption and policy efficacy, rather than focusing sufficiently on the specific facts and credible evidence relating to the applicant’s individual case, and that the Board failed to consider the severity of the alleged threats and violence, were all but mere complaints without any particulars.

21.  More importantly, these were findings of facts which were exclusively within the ambit of the Board in the assessment of the applicant’s claim. If the applicant intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.

22.  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”.

23.  Thus, the general assertionsput forward by the applicant in Grounds (4), (5) and (6) cannot help him at all.

24.  Similarly, the applicant’s assertions in Ground (7), namely that the Board’s Decision was unreasonable, irrational and did not meet the high standards of fairness, were advanced without any specificity. It is futile to simply include these “keywords” as a ground to challenge the Board’s Decision. The applicant failed to identify how the Board had manifestly flawed in its assessment of his claims, or how it failed to properly apply the relevant legal standards. Ground (7) is therefore not arguable either.

25.  Finally, the applicant’s allegations in Ground (8) that the Board failed to give him a fair opportunity to clarify or address inconsistencies in his evidence, or to adduce additional evidence to support his claims, are simply not true.

26.  It is abundantly clear from paragraph 45 of the Board’s Decision that the applicant had plenty of opportunities to rectify any contradictions or inconsistencies in his evidence. He could but did not mention anything about them in his Notice of Appeal/Petition. He also chose not to use the opportunity given to him at the beginning of the Board’s hearing to make the necessary changes to his NCF before adopting the same as part of his evidence. Moreover, questions were raised in the course of the Board’s hearing with the applicant and opportunities were given to him to provide evidence and responses regarding his factual assertions. However, no reasonable explanation was provided by the applicant for the glaring contradictions.

27.  Further, it is noted from paragraph 34 of the Board’s Decision that the applicant was asked before closing his evidence at the Board’s hearing whether he wished to provide any further evidence to support his claim. The applicant confirmed that he had nothing further to add.

28.  Thus, there is plainly no basis for the applicant to complain that the Board failed to give him a fair opportunity to adduce additional evidence to support his claims.

29.  In the circumstances, none of the matters that were contained in the applicant’s document with the title “Grounds on which Relief is Sought” annexed to his Form 86 can amount to any valid grounds to challenge the Board’s Decision.

30.  What the applicant advanced at the oral hearing before this court, namely that he could not go back because his issues in his home country had not been resolved, and that he requested to stay in Hong Kong for 6 more months, were not grounds for judicial review at all.

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, despite the fact that the applicant did not advance any valid ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness, or irrationality as aforesaid.

33.  As can be seen from the Board’s Decision, the Board had carefully analyzed and considered the applicant’s claims and all the evidence. The Board had laid out its consideration of the applicant’s evidence in paragraphs 44 to 54 of the Board’s Decision, and it is not necessary for this court to repeat the same here.

34.  In gist, the Board did not accept the applicant’s evidence as it found glaring contradictions between the evidence that the applicant adopted at the beginning of the Board’s hearing and his subsequent oral testimony in the hearing. No sufficient evidence had been adduced to support the existence of the alleged land dispute, the alleged conduct of the Enemies, the alleged connection and/or influence of the Enemies, and/or the alleged risk of harm or ill-treatment. The Board found that the applicant was not credible and his evidence was wholly unreliable.

35.  The Board found that there was insufficient evidence to establish the existence of the alleged dispute, the alleged conduct of the Enemies, the alleged connection and/or influence of the Enemies, any past threat, harm or ill-treatment, and/or the alleged risk of harm or ill-treatment if the applicant were to return to India. The Board also found that there was insufficient evidence to establish that the applicant’s family had ever been harmed or ill-treated in any way in the past.

36.  Moreover, the Board was of the view that even assuming the applicant’s claim about the existence of the alleged dispute were true, the Board still found that there was no reliable evidence to substantiate any real intention of the Enemies to harm, ill-treat or kill him and/or the alleged risk of harm or ill-treatment of the applicant now.

37.  As aforesaid, the Board had given justified reasons to conclude that internal relocation was a viable option for the applicant to avoid any perceived risk.

38.  In addition, as can be seen in paragraph 54 of the Board’s Decision, the Board had sufficiently explored the availability of state protection to the applicant and found that even if the applicant did face the alleged risk of harm/threat/ill-treatment, reasonable and/or sufficient state protection was available to him for the alleged risks and fear.

39.  Thus, the Board concluded that the applicant had no real risk of any of the proscribed forms of harm if he were refouled to India.

40.  The finding of facts including the assessment of evidence, COI and risk of harm was solely within the ambit of the Board in dealing with the applicant’s appeal/petition. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

41.  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.

42.  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

43.  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