RAM CHENA v. TORTURE CLAIMS APPEAL BOARD

HCAL 2726/2025

[2026] HKCFI 4258

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2726 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, “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 8 December 2025 and filed on 9 December 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 21 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/HCAL002726_2025_files/the_Board's_Decision.pdf

2.  The Board found that the applicant’s claims for non-refoulement protection failed 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 10 September 2025 (“the Director’s Decision”) and confirmed the same, which rejected his 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.  Thus, this court 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 he feared that if refouled to India, he would be harmed or killed by a local village council member named RAMU RAM (“RAMU”) due to the applicant’s refusal of RAMU’s request to purchase the applicant’s farmland inherited from his late father or to transfer the ownership of the land to RAMU. The applicant claimed that RAMU was a supporter of the Bharatiya Janata Party (“BJP”) and had close connection with BJP leaders, and had instructed his associates including MANJEET SINGH, a notorious local gangster, to harm and/or kill him should he return to India.

Oral hearing

7.  The applicant requested for an oral hearing of the Leave Application and his case was heard on 14 July 2026.

8.  When this court asked the applicant to elaborate on the grounds of his intended judicial review, which were stated in his supporting affirmation dated 8 December 2025, he merely replied that he was not educated and his lawyer prepared the grounds for him. The applicant then reiterated the factual background of his non-refoulement claim, namely that RAMU barred him from accessing his land, RAMU was associated with BJP, RAMU hired someone to attack him, etc. He added that the danger he faced upon return to India was the main issue.

Grounds for judicial review

9.  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).

10.  In paragraphs 5(a) to (c) of the applicant’s affirmation, the applicant mentioned that:-

(1)  He was a genuine claimant who faced all these dangerous problems, harassment and torture in his country;

(2)  The Director reached the wrong decision in assessing his claim; and

(3)  If he did not run away, he certainly would have been killed by his enemies. His problems were getting more and more life-threatening day after day.

11.  As aforesaid, the applicant did not elaborate on any of the grounds stated in the said affirmation at the oral hearing, and only reiterated the factual background of his non-refoulement claim.

Discussion

12.  First of all, the applicant’s danger in his own country had been duly assessed but rejected by the Board. If he intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review. Thus, Grounds (1) and (3) as summarised above cannot be valid grounds to challenge the Board’s Decision.

13.  Ground (2) as summarised above was advanced against the Director only. As the Leave Application concerns only the Board’s Decision, which had in fact superseded the Director’s Decision (see Re Moshsin Ali [2018] HKCA 549), this paragraph can simply be ignored.

14.  Thus, none of the grounds that were contained in the applicant’s affirmation dated 8 December 2025 could establish any valid ground to challenge the Board’s Decision.

15.  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).

16.  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.

17.  In assessing the appeal by the applicant, the Board held an oral hearing on 31 October 2025 via video conferencing system and the applicant was present. Thus, the applicant was given the opportunity to present his case to the Board.

18.  As can be seen from the Board’s Decision, the Board had laid out its analysis of the applicant’s claims and found that the applicant had not made out a case for non-refoulement protection on any of the applicable grounds under the USM.

19.  In gist, the Board found that the applicant’s fear of returning to India arose only out of a land dispute with RAMU, which was private in nature. The dispute and personal threats were based on personal animosity and local conflicts rather than systemic persecution or threats originating from the state. Having considered all the information, the Board found that the treatment given to the applicant by RAMU and/or his associates did not meet the minimum level of severity needed to be considered as torture as defined by section 37U(1) of the Immigration Ordinance. The applicant’s fear of harm from RAMU was not for any of the Convention reasons.

20.  The Board had gone through country of origin information (“COI”) and found that despite certain deficiencies and failings in the country conditions of India, the country had taken measures to fight corruption. Further, the Indian government was able and willing to carry out law and order functions and protect the human rights of its citizens. The Board considered that reasonable protection from the Indian government and its authorities would be available to the applicant upon his return to India, if required.

21.  The Board had also laid out in paragraphs 104 to 113 of the Board’s Decision its full reasons for its view that had it been necessary for the Board to consider internal relocation for the applicant, the Board would have concluded that it would not be unreasonable or unduly harsh to expect the applicant to be able to relocate to another part of India to avoid any perceived risks of harm from RAMU and/or his associates.

22.  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.

23.  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.

24.  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.

25.  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

26.  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