KHAN MD IMDAD ALI v. TORTURE CLAIMS APPEAL BOARD

HCAL 1363/2025

[2025] HKCFI 4289

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1363 OF 2025

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”, the name of the putative interested party be amended to “Director of Immigration”, and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 29 November 2024”.

2.   The applicant’s application for extension of time to file 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 13 June 2025, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of two decisions, namely:-

(1)   “Notice of Decission 28 may 2024”; and

(2)   “Appeal Decission 29 Nov 2024”.

2.  The Torture Claims Appeal Board (“the Board”) made a decision dated 29 November 2024 (“the Board’s Decision”) in respect of the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 28 May 2024 (“the Director’s Decision”).

3.  It is clear that the first decision above-mentioned is the Director’s Decision, and the second decision is the Board’s Decision.

4.  Furthermore, the applicant confirmed at the oral hearing before this court on 9 September 2025 that only the Board’s Decision should be the subject of the Leave Application.  The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001363_2025_files/the_Board's_Decision.pdf

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

Amendments

6.  In Form 86, the applicant named “Toucher Claim Appeal board / Nonrefoulmet Claim Pettion office, And Immigration director” as the putative respondents.  However, as the applicant confirmed at the oral hearing before this court that the Leave Application is only in respect of the Board’s Decision, the putative respondent should just be the Board.

7.  Moreover, the applicant named “director of Immigration And Toucher Claim Appeal / Non-refoulement claim Pettion office” as the putative interested parties, when only the Director should be so named.

8.  This court therefore 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”.

9.  As aforesaid, upon the applicant’s confirmation at the oral hearing before this court, the only decision in respect of which relief is sought in the Leave Application is the Board’s Decision, and hence it is so amended on this court’s own motion.

Late application

10.  By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant had to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made.

11.  However, the applicant filed Form 86 on 13 June 2025, which was more than 6 months after the Board’s Decision (made on 29 November 2024).  The applicant was hence late for more than 3 months in making the Leave Application.

12.  This court has to consider whether the time for the applicant to make the Leave Application should be extended taking into account of the criteria laid down in AW v Director of Immigration [2016] 2 HKC 393, which are:

(i)      the length of the delay;

(ii)     the reason for the delay;

(iii)    the merits of the intended application; and

(iv)    any prejudice to the putative respondent and to public administration.

13.  The applicant requested this court to accept his late filing of the Leave Application and provided reasons for the late application in the document annexed to his supporting affirmation dated 13 June 2025.  He stated two reasons for the delay as follows:-

(1)   He was not well-educated and did not know much about law.  He did not even know how to read and write.

(2)   He was serving his prison sentence and at that time, decided to go back to India after he had finished serving his sentence.  However, when he called his friend and family in India after his release from prison and transfer to CIC[1], he was alarmed by his family that his life would be in danger if he ever returned to India, as his enemies were still looking for him to kill him.  It was at that time that he changed his mind and wanted to seek judicial review and started arranging money for the application.

14.  However, at the oral hearing before this court on 9 September 2025, he explained that he received the Board’s document while he was in prison.  He was not educated and therefore he needed someone to translate the document to him.  He could not do so while in prison, and hence he filed the Leave Application late.

15.  A delay of more than 3 months is not insubstantial.  While this court understands the difficulties the applicant might have in filing the Leave Application when he was in prison, the crucial consideration is whether there are any merits of the intended judicial review.  As discussed below, this court finds no merits of the Leave Application at all.

16.  Having considered the above criteria, this court is not prepared to grant any extension of time to the applicant to file the Leave Application.  The Leave Application can therefore be dismissed on the ground of being made out of time alone.  However, for the sake of completeness, this court will proceed to consider the merits of the Leave Application.

The applicant’s case

17.  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.

18.  In sum, the applicant claimed for non-refoulement protection because he feared that if returned to India, he would be at risk of being harmed or killed by Rizwan (“the Enemy”), a senior member of Trinamool Congress (“TMC”), and his associates as the applicant intended to quit TMC.

Oral hearing

19.  The applicant requested for an oral hearing of the Leave Application, and his case was heard on 9 September 2025. 

20.  When this court asked the applicant to elaborate on the grounds for his intended judicial review as stated in the annex to his supporting affirmation dated 13 June 2025, he merely said that his life was in danger in India and he could not go back.  He asked this court to give him one month’s time to submit more evidence in support of his non-refoulement claim.  He also claimed that he would go back to India and would not stay in Hong Kong for long.

Grounds for judicial review

21.  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).

22.  The applicant did not advance any ground for his intended judicial review in Form 86.  In his supporting affirmation, he stated that he was not satisfied with both the decisions of the Director and the Board. 

23.  However, the applicant annexed a hand-written document to his supporting affirmation.  In this document, there is a section with the title “Grounds on which Relief is sought”, the contents of which are reproduced as follows:-

 1.  “I KHAN MD Imdad ALi, being the aggrieved party directly affected by the above decision has sufficient interest in the subject matter of this application to satisfy the requirements under order 53, rule 3(7) of the rules of the High Court Cap 4A.”

2.  “I KHAN MD Imdad ALi, is not satisfied with the decission of Immigration director and the adjudicator of Appeal board.  I belive the decisions was wrongly assessing my NON-Refoulement Claim.  I believe the decision made by both the parties were not reasonable and fairly reached. to the point. as I request the honourable Court to run a [Wednesbury test.]”

3.  “Indeed the right to life is protected under Article 28 of the basic Law and article 2 of the bill of right. In practice.  The right to life is mainly protected by the criminal law and it must be protected from extra-judicial Killings that he may face if he is deported back to his country.”

4.  “from the director’s Decision’s it is evident that the director has failed to appreciate or give the importance or weight age to the presence of state acquiescence in the applicant cases.  This has indeed led to an unfair outcome of rejecting Crediliblity of my Non-refoulement Claim.”

5.  “The adjudictor acted unreasonable and was procedurally unfair by placing to much reliance on Country of orgin information but failed to take my personal background and experience into account further, I would like to submit that although the director had listed relevant COI’s which support the aversion that the police in my Country would not be able to protect me.  And I say the director failed to Consider or give enough weight age to that evidence and ruled otherewise.”

6.  “I would say and Sumbit that the director has failed to take or give enough weight to such argument before reaching the decission. This was a clean of unfair attitude shown by the director which is itself is enough to render his decission void.”

7.  “I would say the adjudictor was procedurally improper and unfair when assessing whether to accept or not accept explatation provied by me and unreasonably requires me to response to question.”

8.  “The adjudicator made a ruling to dismiss my appeal/pettion in the torture Claim appeal board / Non-refoulement Claims pettion office based on findings which the adjudicator ought to allow the appeal / pettion and thus the decission was irrational.”

9.  “The decission issued by the torture Claim appeal board / non-refoulment Claim Pettion office Contain all the details of my claim.”

10.  “Procedural impropriety in making insufficient inquiry in the risk state and Country of orign.”

11.  “failure to provied adequate reason as to decision made to my Non-refoulement Claim.”

12.  “irrationality in failure to consider a Consistent system of human right violation.”

13.  “Procedural impropriety in falling to Call for psychological and psychiatric reports and or evaluation.”

14.  “Procedural impropriety in applying the incorrect standard of proof to my decission and putting weight on irrrelevent facts.”

15.  “The director of Immigration and Adjuctor has fails to fully consider the Coi reports in assessing risk to me if ever I would be deported to my Country.”

16.  “I say the director of Immigration and the adjuctor of Board has fails to give a reason for rejecting the Credibility of my Non-refoulement Claim. As saying only my Claim is based on fear and [private] not govermental. I would say my enemies is goverment representive then how come its private. and if I fear for my life and triying to save from harm and trouble so is every human being does. it was not proper to discrimenate me by other induvisal.”

17.  “even the director and adjuctor had not given proper basis for Consideration of Internal re-location. before rejecting my Claim and left me in dispair.”

18.  “The director of Immigration and Adjuctor of Appeal board had not given me proper time to estblaish my claim and even have not guide me that its my responsiblity to get evidence and estblish my Claim. as I am not educated person who does not even no to read and write english. both the Parties has finish my Claim and appeal while I was in prison in hard time of my life. I was in depression and stress but for no reason it was expidetious as if the both Parties want to just finish there job and So Called duty. it was unfairness happen with me I request the honourable Court to raise this point in my oral hearing.”

19[2].  “There was an irregularity of the decision maker being a diffrent person than the inter-ving officer when rejecting my Non-refoulement Claim and it was unfair with me happen that I was not able to satisfy the ego or needs of the decission makers.”

20[3].  “I request the honourable Court to grand leave to have the decission judicially reviewed.”

24.  As aforesaid, the applicant did not elaborate on any of these grounds at the oral hearing before this court but just asked this court to give him time to submit more evidence.

25.  The contents as stated above was in fact used by many applicants in similar applications as their grounds for applying leave to judicially review the Board’s decisions.  It seems that the applicant had combined these standard grounds and used them without any regard to his own situation.  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.

Discussion

26.  First of all, the applicant seemed to suggest that he had more evidence to submit.  However, if he intended to submit new evidence to this court for consideration of his non-refoulement claim, it was not permissible.  As held in Trinh Thuy Huyen v Torture Claims Appeal Board [2024] HKCA 1090, the Board had no duty to make investigation into any matter without the applicant raising it and it should not be considered by this court at this stage.

27.  Further, as held in Nupur Mst v Director of Immigration [2018] HKCA 524, due to the difference in the role of the court in a judicial review and the role of the primary decision-makers, an applicant cannot rely on materials which have not been produced before the Board or the Director to contend that the latter erred in not taking those into account unless the decision-makers have a positive duty to elicit such materials on their own volition. 

28.  Thus, the applicant cannot rely on any materials not placed before the Board as a ground for his intended judicial review, and there is no reason for this court to give him time to submit more evidence.

29.  As mentioned, the applicant did not elaborate on any of the 20 grounds put forward in the annex to his affirmation.

30.  Some of the above grounds were directed at the Director.  As 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 Director’s Decision cannot be 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.

31.  Paragraphs 4 and 6 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.  Paragraph 20 of the grounds was just asking this court to grant leave to have the Board’s Decision judicially reviewed.  It is not a ground at all.  Thus, only the remaining paragraphs of the grounds are relevant to the Leave Application.

32.  In paragraph 1 of the grounds, the applicant stated that he is the aggrieved party directly affected by the decision and therefore has sufficient interest in the subject matter of this application to satisfy the requirements under order 53, rule 3(7) of the rules of the High Court Cap 4A.

33.  However, the fact that he is the aggrieved party does not necessarily mean that leave should be granted for his intended judicial review.  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.  As discussed below, the applicant failed to establish such a case.

34.  In paragraph 2 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.

35.  It does not help the applicant to establish any ground by just mentioning the right to life in paragraph 3 either.  In any event, the Board did assess the applicant’s risk of right to life and concluded that he had not shown that there were substantial grounds for believing that if refouled, there would be a real risk for believing that he would be subjected to death.

36.  In paragraph 5 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. 

37.  In fact, the Board did consider the applicant’s personal background and experience.  It is noted from the Board’s Decision that the Board found the applicant to be just an ordinary member of TMC and did not hold any position in TMC.  The applicant was not attacked by the Enemy and/or his fellows at all before he departed India.

38.  The applicant further alleged in paragraph 5 of the grounds that although the Director had listed the relevant COI which supported the aversions that the police in his country would not be able to protect, the Director failed to consider or give enough weightage to those evidence and ruled otherwise.  If this allegation was made against the Director only, it would be irrelevant to his challenge to the Board’s Decision.  However, if the applicant was referring to the adjudicator of the Board as he did in the beginning of paragraph 5, then the Board did not list out any COI that supported the aversions that the police in India would not be able to protect the applicant. The Board just noted that there were COI materials which showed the corruption of the Indian government as asserted by the applicant. 

39.  Nevertheless, the Board also found reliable COI to show that the Indian police and authorities could provide protection to the public and the Indian government had taken positive steps to monitor the conduct of the police, to improve their effectiveness, to curb corruption by arresting policemen or even politicians if they breached the law or took bribes.  There were also avenues for complaints against misdeeds of the police.  As such, the Board found that reasonable state protection would be available to the applicant.

40.  In paragraph 7 of the grounds, the applicant alleged that the adjudicator was procedurally improper and unfair when assessing whether to accept or not to accept explanations provided by him, and unreasonably required him to respond to questions.  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 unreasonably required to answer.

41.  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.

42.  In paragraph 8 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.  Similarly, in paragraph 11 and 16 of the grounds, he accused the Board for failing to provide adequate reasons as to the decision made, and the reasons for rejecting the credibility of his claims.

43.  The Board had in fact provided a detailed analysis of the applicant’s claim and the reasons why the Board concluded that the applicant failed on all applicable grounds under the USM to claim non-refoulement protection.  The Board’s rejection of his non-refoulement claim was a decision made after due consideration of the law and the evidence placed before it.  The applicant failed to provide details as to how he was discriminated.  If the applicant intends to challenge the finding of facts by the Board, it is not permissible in a judicial review.

44.  In paragraph 9 of the grounds, the applicant stated that the Board’s Decision contained all the details of his claim.  This court fails to see how the Board erred in considering and assessing all the details of his claim and listing them out in the Board’s Decision.

45.  In paragraph 10 of the grounds, the applicant mentioned that there was procedural impropriety in making insufficient inquiry in the risk state and the country of origin.  Similarly, in paragraph 15 of the grounds, he challenged that the Board had failed to fully consider COI in assessing his risks if he would be deported to his country.

46.  However, the applicant failed to identify what aspects of the risk state or his country the Board had failed to make inquiry.  He did not specify which piece(s) of COI the Board failed to fully consider either.

47.  In paragraph 12 of the grounds, the applicant asserted that the Board failed to consider a consistent system of human right violation.  The applicant did not state how this was related to his case.

48.  In any event, the applicant had not raised this as a reason for his non-refoulement claim.  As discussed earlier, the Board had no duty to make investigation into any matter without the applicant raising it and it should not be considered by this court at this stage.

49.  The applicant complained in paragraph 13 that there was procedural impropriety in failing to call for psychological and psychiatric reports and/or evaluation.

50.  However, calling for psychological and psychiatric reports of non-refoulement claimants is not a must.  If the applicant believed that his psychological/psychiatric condition would support his claim, he could have asked for a medical examination or submit such reports on his own volition for the Board’s consideration, but he did not do so.  The applicant cannot simply make a subsequent complaint like that after the Board’s Decision.

51.  In paragraph 14 of the grounds, the applicant asserted that the Board had applied incorrect standard of proof and put weight on irrelevant facts.

52.  In fact, the Board had clearly laid out the standard of proof adopted in paragraphs 26-30 in the Board’s Decision.  This court finds nothing wrong with the standard adopted.  Further, the applicant did not specify what irrelevant facts the Board had put weight on.

53.  In paragraph 17 of the grounds, the applicant complained that both the Director and the Board had not given proper basis for consideration of internal relocation before rejecting his claim.

54.  However, as can be seen from paragraphs 88-94 of the Board’s Decision, the Board had provided a detailed analysis on the assessment and the viability of internal relocation for the applicant.  The Board concluded that despite its finding that the applicant had failed to establish his claims on all the applicable grounds under the USM, it would not be unduly harsh for him to live elsewhere in India.  It would also be highly unlikely for the Enemy to locate him in case they would, and the Enemy did not have such strong influence in India as the applicant had alleged.

55.  In paragraph 18 of the grounds, the applicant complained that the Director and the Board had not given him proper time and guidance to establish his claim, and did not guide him that it was his responsibility to get evidence and establish his claim.

56.  This accusation is plainly unfounded.  It is a general legal principle that the burden of proof lies on the applicant as he was the person submitting the claim.  In fact, the applicant has a duty under section 37ZA(1) of the Immigration Ordinance, Cap 115 to substantiate his claim.  Moreover, in the Notice of Appeal/Petition that the applicant filled in to lodge the appeal/petition to the Board, there was also the information that it was the applicant’s responsibility to establish his case.

57.  Thus, the applicant must be aware of his duty to establish his own case and to obtain evidence in support of the same.  It is wrong for the applicant to suggest that the Board had a duty to give him time and guidance to establish his claim.

58.  The applicant further accused the Director and the Board of disposing of his case expeditiously.  This accusation is also baseless.

59.  This court notes that the Board heard the applicant’s case on 3 September 2024 and delivered its decision on 29 November 2024.  It took the Board over two months to consider and decide on his appeal/petition.  As can be seen from the Board’s Decision, the Board did analyse the applicant’s claim carefully and provide a detailed analysis on the merits on his claim before reaching its decision.

60.  Lastly, in paragraph 19 of the grounds, the applicant asserted that there was an irregularity of the decision maker being a different person from the interviewing officer when rejecting his non-refoulement claim.

61.  However, the applicant was heard by the Board in person at its hearing on 3 September 2024.  The same member of the Board who heard the applicant at the hearing made the Board’s Decision.  There was simply no substance in this ground.

62.  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”.

63.  Thus, the general assertionsput forward by the applicant above, which merely contained “key words” such as the Board’s Decision was wrong, unreasonable and irrational, or that there was procedural unfairness or impropriety cannot help the applicant at all.  This court finds that none of the grounds asserted by the applicant constitutes a valid ground to challenge the Board’s Decision.

64.  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,supra).

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

66.  After careful consideration of the applicant’s case, the Board found that there was no basis of his claim.  The applicant had not submitted any evidence to support his claim.  There was actually no evidence to support the existence of the Enemy and his fellows.  It was also not suggested that the Enemy or his fellows intended to harm or kill the applicant.  When the applicant informed the Enemy of his intention to quit TMC in late 2022, the Enemy just asked the applicant to re-consider it.  The applicant did not partake in the activities of TMC, but nothing eventful had happened to him.  He was able to leave India on the strength of his Indian passport on 5 July 2023 without any difficulties.

67.  The Board also found that the verbal threats by the Enemy and his associates were pieces of hearsay evidence only.  The harm by the Enemy and his fellows, if any, was not as real and imminent as the applicant had asserted, and the Board noted that the frequency and intensity had been low.  The dispute between the applicant and the Enemy was a private dispute in his locality only.  The applicant’s assertion that the Enemy was of strong influence in India and would locate him anywhere in India could not sustain.

68.  There was no indication that the Enemy was a public official or acting in any official capacity.  There was also no evidence to show that the government in India was involved in his private dispute with the Enemy.  The threats by the Enemy and his fellows on the applicant had not reached the minimum level of severity.  The applicant had not suffered physical and/or mental suffering at all and of the requisite severity.

69.  As mentioned, the Board found internal relocation for the applicant both viable and not unduly harsh.

70.  The Board had therefore fully assessed the danger of the applicant and found his claim for non-refoulement protection failed on all the applicable grounds under the USM.

71.  The assessment of evidence, COI materials and risk of harm was primarily within the realm 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 decision. 

72.  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. 

73.  It is therefore the view of this court that the Leave Application has no merits at all, as the applicant has failed to establish a reasonably arguable claim which enjoys realistic prospects of success.  Hence, leave must be refused.

Conclusion

74.  For reasons aforesaid, the applicant’s application for extension of time to file the Leave Application is refused.  The Leave Application is dismissed for being made out of time and also for devoid of merits.

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