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HCAL 1352/2026
[2026] HKCFI 4521
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1352 OF 2026
BETWEEN
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Arun |
Applicant |
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Torture Claims Appeal Board |
Putative |
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Respondent |
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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 28 July 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 13 July 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/HCAL001352_2026_files/the_Board's_Decision.pdf
2. The Board found that the applicant had not made out a case for non-refoulement protection on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board dismissed the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 12 May 2026 and confirmed the same, which rejected his non-refoulement claim.
Amendments
3. The applicant named “DEPARTMENT iMMiGRATION / T.C.A.B” as both the putative respondent and the putative interested party in Form 86, when the Board should be the putative respondent and the Director should be the putative interested party.
4. 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
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 if refouled to India, he would be harmed or even killed by a villager named Kambir Singh (“Kambir”) in his home village as Kambir intended to seize his land.
Disposal on paper
7. 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
8. 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).
9. In Form 86, the applicant mentioned that the Board’s dismissal was unfair and he wanted a proper judicial review. In his supporting affirmation dated 28 July 2026, he stated that the Board’s Decision was biased and unfair.
Discussion
10. First of all, the applicant’s complaints both in his Form 86 and supporting affirmation that the Board’s Decision was unfair and biased were advanced without any particulars. He did not state how or why the Board’s Decision was unfair or biased.
11. 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”.
12. Thus, the general assertions that were contained in the applicant’s Form 86 and supporting affirmation cannot help him at all.
13. 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).
14. 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.
15. In assessing the applicant’s appeal/petition, the Board held an oral hearing on 29 June 2026. The applicant was present at the hearing and was thus given the opportunity to present his case to the Board in person.
16. The Board had laid out its analysis on the information/evidence given by the applicant in paragraphs 18 to 36 of the Board’s Decision, and it is not necessary to repeat the same here.
17. In gist, the Board found that the information/evidence given by him in material aspects of his case were not credible. The Board had no doubt whatsoever that he was not a credible witness. The claimed risks were based on the unreliable information/evidence which the applicant provided, and the Board rejected them.
18. Moreover, the Board found that even if the information set out in the applicant’s Non-refoulement Claim Form were to be accepted, the Board would still dismiss his appeal/petition, as the Board found that internal relocation was a viable option for the applicant. The Board had laid out its reasons for such conclusion in paragraphs 38 to 43 of the Board’s Decision.
19. In terms of the applicant’s risks under the USM, the Board found nothing to show that Kambir and his son were officials of the Indian government, or persons acting in official capacities. The applicant’s problem with them was therefore a private dispute that had nothing to do with the Indian government. The applicant’s case did not fall within the ambit of torture as defined under section 37U of the Immigration Ordinance. The applicant’s fear of his enemies was not related to any Convention reasons and did not fall within the realm of persecution risk either. The Board found that the applicant’s feared ill-treatment was unlikely to materialize.
20. Thus, the Board concluded that the applicant had not made out a case for non-refoulement on any of the available grounds under the USM.
21. 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.
22. 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.
23. 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
24. For reasons aforesaid, the Leave Application is dismissed.
Dated the 12th day of August 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 his 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: 12/08/2026
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: 12/08/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 28625
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 416/26 (Formerly RBCZ 5000296/26)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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