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HCAL 1038/2021
[2026] HKCFI 2772
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1038 OF 2021
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BETWEEN
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Ahmed Imtiaz |
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 dated and filed on 22 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 16 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/HCAL001038_2021_files/the_Board's_Decision.pdf
2. The Board found that the applicant’s application for non-refoulement protection was not made out 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 11 April 2018 and confirmed the same, which rejected the applicant’s non-refoulement claim.
Amendments
3. The applicant named “Kay RANSOME, Member of the Torture Claims Appeal Board” as the putative respondent and the Board as the putative interested party in Form 86.
4. In fact, Ms Ransome was only making the Board’s Decision in her capacity as a member of the Board. The Board should therefore be named as the putative respondent instead, and 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, he would be harmed or killed by MD Yasim Farooq (“Farooq”), his business partner, to whom he owed money. Furthermore, he would be arrested by the police as Farooq had framed him in some false cases.
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 for the grounds for his intended judicial review, he merely replied that he lost his business in his country and there were risks to his life if he was to return.
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, nor in his supporting affirmation dated 22 July 2021.
12. As aforesaid, the applicant did not advance any grounds at the oral hearing before this court either. He only mentioned that he lost his business in his country and there were risks to his life if he was to return.
Discussion
13. First of all, the applicant’s alleged risks upon returning to 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 a judicial review.
14. 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).
15. 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.
16. In assessing the appeal/petition by the applicant, the Board held an oral hearing on 2 June 2021. The applicant was present and was given the chance to present his case to the Board in person.
17. As can be seen from paragraphs 49 to 60 the Board’s Decision, the Board had analyzed the applicant’s evidence in relation to every aspect of his claims and found that while the general outline of the applicant’s claims had remained consistent over time, there were a number of significant discrepancies between his account of the events that occurred prior to his departure from India in December 2016 given to the Director and that given to the Board at the Board’s hearing. Significantly, the Board found that the applicant failed to mention the most serious events, namely that an arrest warrant had been issued for him on the basis of various unspecified crimes and that he had been subjected to significant mistreatment - being hung upside down for a night – while held for 3 days in an office belonging to Farooq.
18. In gist, the Board had serious concerns about the applicant’s credibility and found the applicant not to be a credible, truthful and reliable witness. The Board was of the view that the applicant had put forward an exaggerated account of his circumstances, including the size of his business, prior to his departure from India. The Board was not satisfied that (1) that applicant owed money in the circumstances as claimed; (2) the applicant was kidnapped and harmed by Farooq and his men; (3) there was a warrant for the arrest of the applicant which had been issued based on false allegations made by Farooq; and (4) Farooq had burned down the applicant’s family home.
19. The Board further found that even if the Board were to accept that the applicant was at risk of harm from a creditor should he return to India, the applicant might be able to seek the protection of the authorities. While the Board acknowledged the setbacks of the Indian police and authorities, they did not mean that the police in the applicant’s area would not act impartially.
20. The Board also noted that the applicant had claimed that Farooq was associated with a Trinamool Congress Party (“TMC”) Minister named Farad Hakim. The Board found that it appeared that the applicant was in fact referring to Firhad Hakim, who was a Minister in the West Bengal TMC government of Chief Minister Mamata Banerjee, the leader of the TMC. The Board found that Firhad Hakim was arrested in 2021 on bribery allegations and was currently on bail. Further, there was no evidence of any association between Firhad Hakim and Farooq. The applicant’s claim that the police did not act on his complaint because of their political connection with the TMC was not supported by any evidence.
21. Moreover, the Board found that even if police assistance would not be forthcoming when the applicant returned to his home area, the applicant would be able to safely relocate elsewhere in India. The Board had given full reasons in paragraphs 66 to 70 of the Board’s Decision for its conclusion that the applicant would be able to relocate to another city in India were he to be at risk of harm from Farooq because of a money dispute, and it would not be unduly harsh to expect him to do so.
22. Thus, the Board concluded that the applicant was not entitled to non-refoulement protection on any of the applicable grounds under the USM.
23. The finding of facts, including the assessment of evidence 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.
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.
Dated the 13th 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: 13/05/2026
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: 13/05/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 11315/18/4/325/IN2206
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 672/18 (Formerly RBCZ 11385/17)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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