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HCAL 985/2021
[2026] HKCFI 3636
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 985 OF 2021
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BETWEEN
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Jaswant Rai |
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, 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 29 June 2021 and filed on 13 July 2021, 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 8 July 2021 (“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/2021/HCAL000985_2021_files/the_Board's_Decision.pdf
2. The Board found that the applicant’s claims for non-refoulement protection were not made out on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board confirmed the decision of the Director of Immigration (“the Director)” dated 21 December 2020, which rejected his non-refoulement claim.
Amendment
3. The applicant named the Board / Non-refoulement Claims Petition Office as the putative respondents in Form 86, when only the Board should be so named.
4. 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.
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 he feared that if refouled to India, he would be harmed, tortured and even killed by a wrestler and his associates. The applicant was a professional wrestler and accidentally broke the leg of the wrestling opponent in a match. The wrestling opponent’s team believed that the applicant broke their team member’s leg intentionally and sought to retaliate against the applicant.
Oral hearing
8. The applicant requested for an oral hearing of the Leave Application and his case was heard on 18 June 2026.
9. When this court asked the applicant to elaborate on the grounds of his intended judicial review, which were stated in a paragraph under the heading “Grounds on which Relief is sought” in his Form 86, he merely replied that his life was in danger.
10. The applicant stated in his supporting affirmation dated 29 June 2021 that he would be in a position to submit the rest of the documents upon his release from detention. However, at the hearing, the applicant said that his documents related to his problem in India were lost and he had nothing to submit.
Grounds for judicial review
11. 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).
12. In a paragraph with the heading “Grounds on which Relief is sought” in Form 86, the applicant made some general accusations against the Board. These general accusations 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. The applicant is no exception. Nevertheless, as the applicant is relying on those grounds to make the Leave Application, this court will still deal with the grounds as discussed below.
13. As aforesaid, the applicant did not elaborate on any of the grounds stated in the said paragraph at the oral hearing, and only mentioned that his life was in danger.
Discussion
14. As mentioned, all the allegations contained in the paragraph with the heading “Grounds on which Relief is sought” are very general.
15. In the said paragraph, 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. It does not help the applicant to establish any ground by just mentioning the right to life in the said paragraph either.
16. In any event, the Board did assess the applicant’s risk of right to life but found that there was not a real risk the applicant would be arbitrarily deprived of his life.
17. 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”.
18. Thus, none of the grounds that were contained in the said paragraph in Form 86 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.
19. The applicant’s alleged danger in his home country had been duly 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.
20. 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).
21. 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.
22. This court notes that the Board assessed the applicant’s appeal/petition without an oral hearing. The Board had given detailed reasons for not having an oral hearing in paragraphs 37 to 43 of the Board’s Decision. In gist, the applicant indicated that he did not wish to attend an oral hearing. Moreover, the Board accepted the factual basis of the applicant’s claims without reservation. Thus, the Board was satisfied that the applicant’s appeal/petition could be justly determined without a hearing.
23. There is no absolute right to an oral hearing. The question of whether an oral hearing should be afforded must be decided by the adjudicator at the petition stage after considering all relevant circumstances. Ultimately, what is in issue is the question of fairness, and in the present context, high standards of fairness are involved (see St v Betty Kwan and the Director of Immigration, CACV 115/2013).
24. Thus, it was not a must for the applicant to have an oral hearing before the Board. This court agrees with the Board that an oral hearing was not necessary. There was no procedural unfairness to the applicant when the Board accepted the factual basis of the applicant’s claims without reservation. In fact, the applicant indicated that he did not wish to attend an oral hearing. Thus, the high standards of fairness required for the determination of the applicant’s appeal/petition was not compromised by not having an oral hearing.
25. As aforesaid, the Board accepted the applicant’s claims in full when assessing the applicant’s appeal/petition. Nevertheless, the Board considered that the applicant had not fully explored avenues or options of gaining protection from the people he feared.
26. Although he approached the police and claimed that the police did not do anything to help him as no attackers were arrested, the applicant was unable to provide the name of the wrestler he accidentally injured in the match nor identify any of the attackers. Having noted that the applicant had a low educational level, the Board found it difficult to assess how much information the applicant was able to give to the police on each occasion.
27. The Board also considered country of origin information (“COI”), including those on the wrestling sports in India, and found that wrestling clubs and associations had links to national sporting associations, and there were rules and procedures for breaches and would have had the capacity to investigate any unsportsmanlike behaviours which were against the code of conduct of the sport. They would also have been best placed to identify people who might have threatened and harmed the applicant, and also to refer such a matter to the police. However, the information provided by the applicant did not indicate that he had spoken to anyone from his sporting club to report the attacks and threats and to get advice.
28. Moreover, the dispute between the applicant and his enemies was a personal one that did not involve the state. The Board did not consider that there was state acquiescence in the ill-treatment of the applicant. The injuries the applicant sustained did not reach a minimum level of severity. The applicant’s fear of the enemies was not for a Convention reason.
29. On the issue of state protection, the Board had examined extensive, fully-referenced COI and was satisfied overall that despite some failings, the state appeared both willing and able to offer the applicant effective protection (see paragraphs 76 to 87 of the Board’s Decision).
30. The Board had also laid out in paragraphs 88 to 94 of the Board’s Decision its full reasons for a finding that there were a number of alternative options for the applicant to relocate in order to avoid the harm he feared. The Board considered that internal relocation was a real and viable option for the applicant.
31. Thus, the Board concluded that the applicant did not face a real risk of being subjected to any of the proscribed forms of harm under the USM if he was refouled to India.
32. The finding of facts, including 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.
33. 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.
34. 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
35. For reasons aforesaid, the Leave Application is dismissed.
Dated the 24th day of June 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 the applicant’s 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: 24/06/2026
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: 24/06/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 17510/21/1/6/IN3221
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 710/20 (formerly RBCZ 10597/20, RBCZ 12071/15 & RBCZ 10934/15)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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