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HCAL 14/2025
[2026] HKCFI 4374
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 14 OF 2025
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BETWEEN
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Murali Kathiravan |
Applicant |
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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. The applicant’s application for leave to withdraw the application for leave to apply for judicial review be refused.
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 2 January 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 24 December 2024 (“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/HCAL000014_2025_files/the_Board's_Decision.pdf
2. The Board found that the applicant’s claim for non-refoulement protection in Hong Kong failed 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 17 October 2024 and confirmed the same, which rejected the applicant’s non-refoulement claim.
The applicant’s case
3. 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.
4. In sum, the applicant claimed for non-refoulement protection because if refouled to India, he would be harmed or even killed by the Bharatiya Janata Party (“BJP”) members from Virampattinam due to his involvement in the conflicts between fishermen from Nallavadu and Virampattinam regarding fishing issues.
Withdrawal of the Leave Application
5. Before the Leave Application was dealt with, the applicant filed an ex parte application by way of his affirmation dated 23 June 2026 to withdraw the Leave Application. However, he did not indicate that it was safe for him to return, nor his problems in his home country had been resolved.
6. There is no evidence to show that the applicant made the withdrawal application other than out of his own volition. With this withdrawal application, it is clear that the applicant no longer wishes to proceed with the Leave Application or any oral hearing of the Leave Application even though he had previously requested one.
7. However, the Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 that:-
“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”
8. Thus, it is not right to leave the action at large. The applicant’s application to withdraw the Leave Application is therefore refused and this court will proceed to deal with the Leave Application.
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 grounds for judicial review in Form 86. In his supporting affirmation dated 2 January 2025 under the heading “GROUNDS”, the applicant only mentioned that he had many objections, the adjudicator did not give him true decision and he wanted to talk to the adjudicator again.
Discussion
11. First of all, the applicant only asserted that he had many objections but did not specify what objections he had, or how the Board’s Decision was flawed. It does not help the applicant either by merely mentioning that the adjudicator did not give him true decision and he wanted to talk to the adjudicator again.
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, 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.
14. In assessing the applicant’s appeal/petition, the Board arranged an oral hearing on 29 November 2024 and the applicant was present. Thus, the applicant did have the opportunity to present his case to the Board in person.
15. As can be seen from the Board’s Decision, the Board found that the conflicts between the applicant’s own village, Nallavadu, and the village of Virampattinam regarding fishing issues had been long lasting and existed even before the applicant’s birth. The applicant was not an active fisherman and he did not have any role in the village committee. The applicant’s father who was a member of the village committee of Nallavadu and actively participated in the conferences between the two villages was never a target for harm. The Board found no evidence that the applicant would be a target of his enemies since the applicant was only an inactive fisherman who only participated in the conferences occasionally. The Board found the credibility of the applicant’s claimed facts highly doubtful.
16. Moreover, the applicant was only attacked twice and sustained injury in one of them, which was not serious. There was no evidence showing that the assaults were directed by BJP leaders or associated with BJP. The applicant’s conflict with villagers of Virampattinam was only a conflict at a personal and local level. There was no evidence of state acquiescence in the applicant’s case.
17. The Board had also gone through extensive country of origin information (“COI”) in assessing the availability of state protection in paragraphs 20 to 34 of the Board’s Decision. Based on all the information and evidence, the Board did not accept that reasonable protection from the Indian government and its authorities was not available to the applicant.
18. Further, the Board had given full reasons in paragraphs 64 to 70 of the Board’s Decision for its finding that it was not unduly harsh for the applicant to relocate to other areas in India to lower or negate the risk from his enemies should he return to India.
19. Thus, the Board found that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the USM.
20. The assessment of evidence, COI and risk of harm was primarily within the realm of the Board in dealing with the applicant’s appeal/petition. 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.
21. 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.
22. 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
23. For reasons aforesaid, the application to withdraw the Leave Application is refused and the Leave Application is dismissed.
Dated the 5th 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 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: 05/08/2026
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: 05/08/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 24818
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 2117/24 (Formerly RBCZ 5001719/24)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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