MOHAMED ASHRAF, OZAIR v. TORTURE CLAIMS APPEAL BOARD

HCAL 942/2026

[2026] HKCFI 3398

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 942 OF 2026

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 or counsel in open court;

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 5 May 2026 and filed on 20 May 2026, 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 20 April 2026 (“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/2026/HCAL000942_2026_files/the_Board's_Decision.pdf

2.  The Board rejected the applicant’s claim for non-refoulement protection on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board dismissed the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 13 February 2026 (“the Director’s Decision”) and confirmed the same, which rejected the applicant’s non-refoulement claim.

Amendments

3.  In Form 86, the applicant named the Director and the Board as both the putative respondents and the putative interested parties.

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, he would be harmed or even be killed by the supporters of the Bharatiya Janata Party (“BJP”), as the applicant had witnessed and reported the attack of his cousin by two supporters of BJP, which eventually led to the cousin’s death. The applicant believed that he and his cousin were attacked because of their Muslim identity.

Disposal on paper

8.  The applicant did not request for an oral hearing of the Leave Application. This court is also satisfied that the Leave Application can be disposed of based on the written materials before this court. Hence, the Leave Application is dealt with on paper.

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.  The applicant did not advance any ground for his intended judicial review in Form 86, nor in his supporting affirmation dated 20 May 2026. In his affirmation, the applicant merely stated that he was not satisfied with both the Director’s Decision and the Board’s Decision.

Discussion

11.  First of all, 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). Thus, this court will only deal with the applicant’s challenge against the Board’s Decision, which is the only subject matter of the Leave Application.

12.  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).

13.  Thus, despite the fact that the applicant did not advance any valid ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness, or irrationality as aforesaid.

14.  In assessing the applicant’s appeal/petition, the Board held an oral hearing on 14 April 2026. The applicant was present and was thus given the opportunity to present his case to the Board in person.

15.  The Board had laid out its analysis and findings on the credibility of the applicant’s claim in paragraphs 30 to 36 of the Board’s Decision, and it is not necessary to repeat them here.

16.  In gist, the Board found that the applicant’s case was vague and unbelievable in both his oral evidence and his written case. On the whole, the Board did not find the applicant to be telling the truth. Except the applicant’s personal and family background, his education and work history, all the other matters including the stated threats and assaults by his enemies were not accepted. Furthermore, even if there were such threats as alleged, the dispute and matters relating thereto were confined to his local area. There was nothing in the evidence that suggested that the government would help to cause any harm on the applicant or was indifferent to the alleged risk of harm. In particular, the Board did not find that the applicant’s enemies were so powerful and influential as claimed.

17.  Despite its findings as aforesaid, the Board had assessed the applicant’s risk by taking his case to its highest and on the basis that his story was true to the extent that the stated threats had been issued towards him. On this assumption and taking into account of the frequency, intensity and mode of past ill-treatment from his enemies, the extent of injuries, if any, on him, the Board still found that such ill-treatment did not attain a minimum level of severity. The ability of the applicant to move to stay in various places in the country for relatively long time, and his ability to arrange his trip to Qatar and later to Hong Kong, were indicative that his enemies were not that strong.

18.  The applicant had never insisted on the protection from the police or other public authorities in his country. It was out of his own volition not to follow up with the police or other authorities the threats and assaults and the potential risk that his enemies had made or would make against him. Even if the applicant were to be harmed by his enemies after being returned to India, there was no basis that any public official or person acting in an official capacity would play any part in the infliction of such harm, instigate or acquiesce in the perpetuation of the same. Furthermore, there was no solid evidence to support the applicant’s claim that his enemies could search for him throughout the country.

19.  Thus, the Board concluded that the applicant did not face a real risk of torture, ill-treatment or arbitrary deprivation of his life upon refoulement. Although his problem could be regarded as one resulting from different religious or political groups, the likelihood that he would face the feared treatment was not assessed to be real and foreseeable and it was not accepted that his fear was well-founded.

20.  In view of its findings as aforesaid, the Board did not see the question of internal relocation arose. Nevertheless, the Board explicitly stated in paragraph 58 of the Board’s Decision that if it were necessary for the applicant to get out of the place where he used to live and to keep away from his enemies, the applicant, being young in his late 40’s with education and work experience, could relocate to other places in India.

21.  Thus, the Board concluded that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the USM.

22.  The finding of facts relating to a non-refoulement claim, including the assessment of evidence, country of origin information and risk of harm, was solely within the ambit of the Board in dealing with the applicant’s appeal/petition. This court finds nothing wrong or unreasonable in the way the Board reached its decision.

23.  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.

24.  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

25.  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