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HCAL 1526/2022
[2026] HKCFI 3782
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1526 of 2022
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BETWEEN
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Niyaj Ahamad |
Applicant |
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and |
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Torture Claims Appeal Board / |
Putative |
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Non-Refoulement Claims Petition Office |
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 (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge (Non-Refoulement Claims) Martin Wong:
1. The Applicant’s Form 86 be amended to state the TCAB Decision as the decision in respect of which relief is sought, and name the DOI as a putative interested party; and
2. The application for leave to apply for judicial review be dismissed.
Observations for the Applicant:
Introduction
1. By a Form 86 filed on 19 December 2022 (the “Form 86”), the Applicant applied for leave to apply for judicial review of a decision by the Torture Claims Appeal Board (the “TCAB”) “ref. no. USM 19132”. He named the TCAB as the proposed respondent and did not name any interested party.
2. Looking at the case file, there was a decision by the TCAB bearing the above reference number dated 14 November 2022 (the “TCAB Decision”), which affirmed a decision by the Director of Immigration (the “DOI”) dated 26 October 2021 in refusing the Applicant’s non-refoulement protection claim.
3. I amended the Form 86 on my own motion to state the TCAB Decision as the decision in respect of which relief is sought, and name the DOI as a putative interested party.
4. The Applicant requested for a hearing and attended the same. When asked if he had anything to add he confirmed that he had not. However, he informed me that he applied for legal aid on 5 May 2026 and was waiting for the outcome.
5. More than 42 days have now lapsed and there is no indication that he has been granted legal aid. I therefore proceed to deal with this application.
Background
6. The Applicant is a national of India. He seeks non-refoulement protection on the basis that if he was returned, he would be harmed or killed by loan sharks from whom he had borrowed money and could not repay. His personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be assessed through a hyperlink[1], and I shall not repeat the same herein.
Discussion
7. In a judicial review, this court does not provide a further avenue of appeal. Though in non-refoulement case an enhanced standard in scrutinizing the decision of the TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI are the primary decision-makers. This court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the TCAB (Nupur Mst v Director of Immigration [2018] HKCA 524, [14(1)]). There must be a reasonably arguable claim with a realistic prospect of success before leave for judicial review will be granted (Peter Po Fun Chan v Winnie Cheung & Anor (2007) 10 HKCFAR 676).
8. In his affirmation filed in support of this application, the Applicant did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision.
9. Looking at the TCAB Decision, the TCAB took into account the Applicant’s case and evidence, including relevant Country of Origin Information, and applied the correct approach in assessing the same [8-28]. After thorough analysis and assessment, came to the findings and conclusions that the Applicant’s allegations were not made out [29-41].
10. Applying the correct legal principles applicable to each of the four applicable grounds under the USM, the TCAB further found and concluded that none of the grounds was made out [42-81].
11. The TCAB further found and concluded that internal relocation would be available to the Applicant in any event [82-90].
12. I do not see any error of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.
Conclusion
13. For the above reasons, I am not satisfied that this court should intervene by way of judicial review. I therefore dismiss the application.
Dated the 8th day of July 2026
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(Cheung Ho Yat, Annson)
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 to the Applicant on 8 July 2026
Niyaj Ahamad
Applicant’s ref. no.:
Nil. |
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Sent 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 8 July 2026
Torture Claims Appeal Board / Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 19132
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1338/21 (formerly RBCZ 10514/21)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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