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HCAL 1480/2021
[2026] HKCFI 2799
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1480 OF 2021
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BETWEEN
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Zunaid Akhtar |
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” and the name of the putative interested party be amended to “Director of Immigration”.
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 with unspecified date but filed on 25 October 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 15 October 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/HCAL001480_2021_files/the_Board's_Decision.pdf
2. The Board found that the applicant had failed to establish his claim for non-refoulement protection on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board rejected the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 18 April 2018 and affirmed the same, which rejected the applicant’s non-refoulement claim.
Amendments
3. The applicant named the Board and the Director as both as the putative respondents and the putative interested parties in Form 86, and spelt the Board’s name wrong.
4. In fact, only the Board should be named as the putative respondent and only the Director should be named as the putative interested party.
5. Thus, this court 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”.
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, his life would be endangered by his father’s former employer, Shiv Kumar (“Kumar”) owing to a dispute with him related to an incident and altercation between them when the applicant suffered some injury and the back of Kumar’s head crashed onto a rock and bled when he fell backwards.
Oral hearing
8. The applicant requested for an oral hearing of the Leave Application and his case was heard on 7 May 2026.
9. When this court asked the applicant to elaborate on the grounds for his intended judicial review which were stated in a handwritten letter annexed to his supporting affirmation dated 25 October 2021, he merely replied that he would rely on the grounds stated therein and he had nothing to add.
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 grounds for his intended judicial review in Form 86.
12. In the said letter which was annexed to his supporting affirmation, he mentioned 3 matters, which are summarized as follows:
(1) His life would still be in danger if he returned to India;
(2) Internal relocation was not possible because of the influence of his enemy Kumar;
(3) Covid-19 pandemic was serious in India and there was no vaccine distribution there.
13. As aforesaid, the applicant did not elaborate on any of the above grounds at the oral hearing before this court.
Discussion
14. First of all, the applicant’s danger in his home country and the viability of internal relocation had been duly assessed 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.
15. His fear of return to India due to the Covid-19 pandemic was not presented before the Board for assessment.
16. The Court of Appeal has held in Trinh Thuy Huyen v Torture Claims Appeal Board [2024] HKCA 1090 that 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.
17. In any event, the Covid-19 pandemic is over and is no longer an issue.
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, 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.
20. In assessing the appeal/petition by the applicant, the Board held an oral hearing on 7 October 2020. The applicant was present and was given the chance to present his case to the Board in person.
21. As can be seen from the Board’s Decision, the Board found that the dispute between the applicant and Kumar was based on one single incident where he and Kumar had a fight after the applicant saw his father being slapped and pushed by Kumar at his father’s work site. The Board found that it was only a personal dispute. There was no evidence that the state or any officials or the Trinamool Congress Party (“TMC”), with which the applicant claimed that Kumar was associated, were involved in the applicant’s dispute with Kumar.
22. The Board also found that the injuries sustained by the applicant during the said incident and subsequently, on the day after the incident when Kumar came with 3 or 4 unknown men to assault him, were not serious and did not amount to torture, nor attain the level of minimum severity required for international protection. The Board was of the view that Kumar had no real intention to kill the applicant.
23. Moreover, the Board had considered the availability of state protection to the applicant and addressed the applicant’s concerns in the lack of it in paragraphs 48 to 55 of the Board’s Decision. The Board found from objective country of information (“COI”) that despite setbacks, reforms had been and were on-going in India and there were objective indications that the Indian government had taken practical steps to improve the effectiveness, as well as monitoring the conduct of the police force in India. The Board found no indication that the government in India would fail to discharge its duties or tolerate any unlawful and abusive behaviour or misconduct committed by an individual, government official or police officer as a systemic practice. The Board did not accept that the Indian government and the police would not help or protect the applicant if he were to seek assistance from them after his return to the country.
24. The Board also found that the applicant had the option of internal relocation. As can be seen from paragraphs 31 to 34 of the Board’s Decision, the Board had made findings in relation to all the applicant’s claims about the influence and power of Kumar and the alleged political affiliation of Kumar with the TMC. The Board had laid out its reasons in paragraphs 45 to 46 of the Board’s Decision for the conclusion that the applicant would be safe upon relocation to another city in India, away from his home district, and to make a good living there.
25. Thus, the Board concluded that the applicant had failed to establish that there was a real risk he would face any of the proscribed forms of harm upon refoulement.
26. 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.
27. 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.
28. 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
29. For reasons aforesaid, the Leave Application is dismissed.
Dated the 20th day of May 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: 20/05/2026
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: 20/05/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 11316/18/4/326/IN2207
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 620/18 (Formerly RBCZ/10681/17)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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