KAMAL MOHAMMED ANWAR v. TORTURE CLAIMS APPEAL BOARD

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

1.  On this court’s own motion, 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 28 October 2020, 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 2020 (“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/2020/HCAL002169_2020_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”).  Hence, the Board dismissed the applicant’s appeal/petition and confirmed the decision of the Director of Immigration (“the Director”) dated 24 October 2018, which rejected the applicant’s non-refoulement claim.

Amendment

3.  In Form 86, the applicant named both the Board and the Director as the putative interested parties, when only the Director should be so named.

4.  Thus, this court makes an order on its own motion to amend the name of the putative interested party to “Director of Immigration”.

Late application

5.  By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant had to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made.

6.  However, the applicant filed his Form 86 on 28 October 2020, which was 3 months and 20 days after the Board’s Decision (made on 8 July 2020).  The applicant was hence late for 20 days in making the Leave Application.

7.  This court has to consider whether the time for the applicant to make the Leave Application should be extended taking into account of the criteria laid down in AW v Director of Immigration [2016] 2 HKC 393, which are:

(i)  the length of the delay;

(ii)  the reason for the delay;

(iii)  the merits of the intended application; and

(iv)  any prejudice to the putative respondent and to public administration.

8.  The applicant did not explicitly make any application for extension of time but provided an explanation for the delay in making the Leave Application in the document annexed to his affirmation dated 28 October 2020 under the heading “Reason for late filling [sic]”.

9.  The applicant stated that he did not get the letter or decision from the Board on time.  The immigration officer informed him about the Board’s Decision and he went to get it on 23 October 2020.  Then he intended to apply for judicial review.  At the oral hearing before this court on 9 December 2025, when asked why he was late in filing the Leave Application, the applicant only said that he did not know about it.

10.  Although a delay of 20 days is not very substantial, the explanation given by the applicant is not satisfactory.  The reason why he did not receive the Board’s Decision within time by post remained unexplained.  More importantly, there is no merits in the Leave Application as discussed below.

11.  Having considered the above criteria, this court is not prepared to grant any extension of time to the applicant to file the Leave Application, even if an application for extension of time was made.  The Leave Application can therefore be dismissed on the ground of being made out of time alone.

12.  However, for the sake of completeness, this court will consider the merits of the Leave Application as discussed below.

The applicant’s case

13.  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.

14.  In sum, the applicant claimed for non-refoulement protection because if refouled to India, he feared being ill-treated or even killed by the police due to his suspected involvement in the bomb blasts in Bodh Gaya (“the Gaya Bomb Blast”) in 2013.  He also claimed that people from the Bharatiya Janata Party (“BJP”) and the Hindu group, which was backed by BJP, were after him because of his involvement with a social welfare group called Muslim Fundamentalist (“MF”).  The police detained him once or twice a month for the same reason, and administered death threats and assaulted him during the detentions.  Further, he claimed that he was at risk of harm or death by his creditor from whom he borrowed 500,000 Indian Rupees since he could not repay the debt.

Oral hearing

15.  The applicant requested for an oral hearing of the Leave Application. His case was heard on 9 December 2025.

16.  At the hearing, this court asked the applicant to elaborate on the grounds for the intended judicial review contained in the 5-page document annexed to his supporting affirmation dated 28 October 2020.  However, the applicant said that he had already said what he wanted to say in his 7-page written submission submitted on 24 November 2025 and there was no more addition.  He also said that his application was not dealt with properly and so he wanted to have the judicial review.

Grounds for judicial review

17.  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).

18.  In the document annexed to his supporting affirmation under the heading “Grounds on which relief is Sought”, the applicant asserted some general grounds in the 11 paragraphs under Part (A) of the document.  However, those general grounds were commonly used by many other applicants in similar applications as their grounds for applying leave to judicially review the Board’s decisions without any regard to their own situations.

19.  Part (B) of the said document only contained the applicant’s reason for the late filing of the Leave Application, which was discussed above.

20.  In Parts (C) and (D) of the document, the applicant stated that he faced Persecution Risk and Torture Risk respectively in India.

21.  In the 7-page written submission submitted on 24 November 2025, the applicant gave 16 reasons (the applicant wrongly numbered the two reasons after paragraph 11 as paragraphs 10 and 11 again) as to why he did not agree with the Board’s Decision.  The first 12 reasons (including the second paragraph 10) were again general assertions without any specificity or any regard to his own case.

22.  In reason 13 (as stated in the second paragraph 11 under the heading “My current situation in India”), apart from repeating his fear from the police about his suspected involvement in the bomb blast case in 2013, the applicant elaborated extensively the violence against Muslims in India.  He alleged that civilians were being killed everyday by Hindu fundamentalists who were controlling the power of the government.  The police always tortured the Muslim people mentally and physically, and he as a Muslim would face the same situation.

23.  In reason 14 (as stated in paragraph 12 under the heading “My deadly life in India”), the applicant alleged that the Board had significantly relied on the source of news which was not officially recognized or was simply hearsay. However, his enemies were still looking for him and the political situation in India did not support to save his life.  So, there was a high risk for his life to return to his home country.

24.  In reason 15 (as stated in paragraph 13 under the heading “Torture Risk”), the applicant claimed that he would be tortured by his enemies and face a death consequence if refouled.  According to human rights, he had a right to request the court to grant him leave for judicial review for saving his life.

25.  Lastly, in reason 16 (as stated in paragraph 14 under the heading “Fear of returning”), the applicant asserted that he was in fear of being tortured by his enemies and he referred to some articles concerning the situations of Muslims in India.

26.  This court will deal with the aforesaid grounds as discussed below.

Discussion

27.  First of all, the 11 paragraphs that were contained in Part (A) of the document annexed to the applicant’s supporting affirmation under the heading “Grounds on which relief is Sought” and the first 12 reasons (including the second paragraph 10) in his written submission were just general accusations against the Board without any particulars or any regard to his own situations.

28.  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”.

29.  The applicant complained that the Board’s Decision was wrong, unreasonable and irrational and the Board failed to apply high standards of fairness in assessing his case or to meet the greater care and duty owed to a self-represented claimant.  However, he failed to state how or why it was so.

30.  He also asserted that the Board relied on the source of news which was not officially recognized, outdated, not credible or was simply hearsay.  However, he did not state which pieces of news that the Board relied on were as what he asserted.

31.  Contrary to his assertion, this court finds that the Board had clearly referred to extensive country of origin information (“COI”) which were fully-referenced and generally update in its assessment of the applicant’s claims.  The reference materials used to assess the Gaya Bomb Blast in 2013, which was one of the core elements of the applicant’s claims, were all dated in 2013 around the time of the incident (see paragraphs 69 to 73 of the Board’s Decision).  Those materials were updated to the material time of the incident and should not be regarded as outdated at all.

32.  As to the applicant’s complaint that the Board did not conduct any analysis of the supporting documents nor give adequate reasons for its decision, the applicant did not specify which supporting documents of his were not or not adequately analyzed, and/or which part of the Board’s Decision was not supported by reasons.

33.  The applicant also challenged the Board for having failed to consider a consistent system of human rights violation.  However, the Board did explicitly state in paragraph 54 of the Board’s Decision that the decision was reached by making assessment in the light of all the available materials in the case, inter alia, whether in the country concerned, there existed “a consistent pattern of gross, flagrant or mass violations of human rights”.

34.  The applicant’s allegation that the Board had failed to evaluate and make a finding of fact as to whether there was a consistent pattern of gross and mass violation of human rights violation in India is groundless.  It is clear that the Board, as aforesaid, did take violations of human rights into consideration.  This is evident from the Board’s extensive reference to the COI materials regarding the Indian government generally, the performance of its police force and the improvement measures taken by the Indian government.  There is simply no ground for the applicant to accuse the Board for not considering this matter.

35.  The applicant further challenged the Board for failing to give him sufficient chance to arrange relevant evidence.  Again, this allegation was asserted without any specificity.

36.  This court notes that the applicant last entered Hong Kong in November 2015 and lodged his non-refoulement claim in April 2016.  Clearly, the applicant had ample time and opportunity to arrange relevant evidence before his case was heard and decided by the Board in April and July 2020 respectively.  Moreover, if indeed the applicant had further evidence to gather and present to the Board, he could have asked the Board for time to do so, but he did not.

37.  Thus, none of the general accusations raised by the applicant 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.

38.  In Part (C) and (D) under the heading “Grounds on which relief is Sought” in the document annexed to his affirmation dated 28 October 2020, the applicant asserted that he faced both Persecution Risk and Torture Risk because he is a Muslim.  He also asserted in reason 13 (as stated in the second paragraph 11 under the heading “My current situation in India”) and reason 16 (as stated in paragraph 14 under the heading “Fear of returning”) in his written submission that his life would be at risk due to his Muslim ethnicity.

39.  The applicant did not raise to the Board the fear that his life would be at risk simply due to his Muslim ethnicity for its assessment.  His claims before the Board were just that he was at risk of being harmed or killed by the Indian police because of the Gaya Bomb Blast in 2013 and his involvement with a social welfare group MF, as well as the risk from his creditor.

40.  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.

41.  Further, as held in Nupur Mst v Director of Immigration [2018] HKCA 524, due to the difference in the role of the court in a judicial review and the role of the primary decision-makers, an applicant cannot rely on materials which have not been produced before the Board or the Director to contend that the latter erred in not taking those into account unless the decision-makers have a positive duty to elicit such materials on their own volition. 

42.  Thus, the applicant cannot rely on any materials not placed before the Board as a ground for his intended judicial review, and there is no reason for this court to consider his non-refoulement claim afresh based on this new allegation.

43.  Lastly, the applicant asserted in both reason 14 (as stated in paragraph 12 under the heading “My deadly life in India”) and reason 15 (as stated in paragraph 13 under the heading “Torture Risk”) in his written submission that his life would be in danger upon refoulement.  As can be seen from the Board’s Decision, all his claimed dangers had been duly considered 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.

44.  It is therefore this court’s finding that the applicant has failed to establish any valid ground for challenging the Board’s Decision.

45.  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, supra).

46.  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.

47.  In assessing the appeal by the applicant, the Board held an oral hearing on 6 April 2020.  The applicant was present and was given the chance to present his case to the Board in person. 

48.  The Board had in fact provided a very detailed analysis of the applicant’s claim and the reasons why it concluded that the applicant failed on all the applicable grounds under the USM to claim non-refoulement protection.

49.  As stated in paragraphs 78 to 84 of the Board’s Decision, the Board found significant and multiple aspects of the applicant’s claims unconvincing and implausible.  Having considered the applicant’s testimony and all the evidence with due care, the Board found the core of the applicant’s evidence unreasonable and implausible.  The Board rejected that the applicant was a terrorist’s cousin and thus consistently subjected to arrest and interrogation by the Indian police on the basis of his involvement in terrorist attacks as alleged. The Board also rejected his allegations that he was subjected to investigation in view of his involvement in MF and that he was harassed and assaulted by his moneylender.

50.  The Board concluded from extensive COI that the applicant could seek assistance from the police station, courts or other authorities if it was necessary.

51.  Thus, the Board did not accept that there was a foreseeable, real and personal risk that the applicant would be subjected to harm from anyone upon his return to India.

52.  In view of the findings as summarised above, the Board considered that it was not necessary to make findings on internal relocation for the applicant. Nevertheless, the Board had explicitly stated that the influence of the applicant’s moneylender, if any, was apparently localized.  The Board did not consider that the applicant was targeted by the Indian police.  On the basis of these findings, the Board considered that it was not unduly harsh for the applicant, being well-educated with work experience, to relocate to other big cities within India, if he faced any problem.

53.  The assessment of evidence, COI and risk of harm was primarily within the realm of the Board.  The Board was entitled to come to its own conclusion. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

54.  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. 

55.  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

56.  For reasons aforesaid, the Leave Application is dismissed for being made out of time and also for lack of merits.

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