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HCAL 2606/2025
[2026] HKCFI 2457
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2606 OF 2025
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BETWEEN
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Ekbal Hossain |
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, “Director of Immigration” be added as the putative interested party.
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 24 November 2025 and filed on 25 November 2025, 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 7 November 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/2025/HCAL002606_2025_files/the_Board's_Decision.pdf
2. 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”). Accordingly, the Board refused the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 18 September 2025 and confirmed the same, which rejected the applicant’s non-refoulement claim.
Amendment
3. The applicant did not name any putative interested party in Form 86, when the Director should be so named.
4. This court therefore makes an order on its own motion to add “Director of Immigration” as the putative interested party.
The applicant’s case
5. 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.
6. In sum, the applicant claimed for non-refoulement protection because if refouled to India, he would be harmed or killed by a man named Shamim, the husband of Shabnam whom the applicant had a relationship with, as he had contacts with Shabnam even after her marriage with Shamim.
Oral hearing
7. The applicant requested for an oral hearing of the Leave Application. However, the applicant was absent at the hearing on 16 April 2026.
8. As held in Re Abdus Salam [2019] HKCA 1091, an application for leave to bring judicial review should not be dismissed for want of prosecution merely because the applicant failed to attend the oral hearing of the leave application. The correct approach is to treat the applicant as having withdrawn the request for a hearing by reason of the absence at the hearing, and to proceed to determine the leave application on its merits.
9. Thus, this court will proceed to consider the merits of the Leave Application based on the written materials before this court.
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 did not advance any ground for his intended judicial review in Form 86. In his supporting affirmation dated 24 November 2025, the applicant mentioned a few grounds for the intended judicial review, which are summarised as follows:-
(1) He was a genuine non-refoulement claimant who faced all these dangerous problems, harassment and torture in his country and he was unable to find any place to stay safely;
(2) He believed that the Director had reached the wrong decision and rejected his claim without any proper inquiry and without carefully understanding his situation;
(3) If he did not run away, he certainly would have been killed by his enemies and his problems were getting more and more life-threatening day after day.
Discussion
12. First of all, the applicant’s alleged danger upon refoulement had been assessed but rejected by the Board. If the applicant intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.
13. With regards to his general allegation against the Director that was summarised as ground (2) above, this cannot be a valid ground as the intended judicial review is about the Board’s Decision, not the Director’s Decision. 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). Hence, the Director’s Decision cannot be the subject matter of the Leave Application.
14. However, as the applicant had stated in Form 86 that the Board’s Decision was the subject matter of the Leave Application and he indeed attached a copy of the Board’s Decision with his supporting affirmation, this court will treat this ground as against the Board’s Decision, and assume that the applicant asserted that the Board had reached the wrong decision and rejected his claim without any proper inquiry and without carefully understanding his situation.
15. 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”. Thus, the applicant’s general allegation that the Board’s Decision was wrong cannot help the applicant at all.
16. In fact, the applicant’s allegation that the Board rejected his claim without any proper inquiry and without carefully understanding his situation is simply not true.
17. As can be seen from the Board’s Decision, the Board had carefully analysed the applicant’s risk upon refoulement and had made all the inquiry needed for the assessment of the applicant’s appeal/petition.
18. 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).
19. 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.
20. In assessing the applicant’s appeal/petition, the Board held an oral hearing on 4 November 2025. The applicant was present at the hearing. Thus, the applicant did have a chance to present his case to the Board in person.
21. As can be seen from the Board’s Decision, although the Board found that the applicant had only made bare assertions and provided no objective proof, the Board considered the applicant to be generally honest and credible, and accepted the applicant’s account leading to his claim for non-refoulement protection.
22. The Board considered that there was a real risk that if the applicant were to encounter Shamim, he might suffer physical injury caused by an assault. However, the Board considered it unlikely that Shamim intended to kill the applicant, given that Shamim had two opportunities to do so when he attacked the applicant with a chopper on two occasions. However, the Board accepted that there was a real chance that death or serious physical injury could result, in the event that the applicant was assaulted.
23. Nevertheless, the Board had given full and detailed reasoning in paragraphs 38 to 42 of the Board’s Decision as to its conclusion that internal relocation was a viable option for the applicant and it would not be unreasonable or unduly harsh for the applicant to relocate within India to avoid harm from Shamim. The Board was satisfied that the risk of harm was confined to the applicant’s home area. The Board had also addressed every concern of the applicant about relocation, including that he could be found by Shamim, his claimed depression, his education level, his language ability and the applicant being a Muslim. The Board found that the applicant, being young with extensive and varied work experience and skills as a tailor, could reasonably and safely relocate to large cities with significant Muslim communities such as Mumbai, Jaipur or Delhi, where Hindi was spoken, or other Hindi-speaking cities in northern India, including Chandigarh.
24. In view of its findings on the viability of internal relocation for the applicant to avoid any harm, the Board considered that the applicant’s claims for non-refoulement protection failed on all the applicable grounds under the USM.
25. The assessment of evidence, country of origin information and risk of harm was primarily within the realm of the Board. The Board was entitled to make its own decision. The applicant’s alleged dangerous situations had been fully considered but rejected by the Board. This court finds nothing wrong or unreasonable in the way the Board reached its decision.
26. 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.
27. In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that 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
28. For reasons aforesaid, the Leave Application is dismissed.
Dated the 29th day of April 2026
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( Gladys LEE )
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 his 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: 29/04/2026
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: 29/04/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 27259
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 1747/25 (Formerly RBCZ 5001541/25)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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