KALIMUTHU PAZHANICHAMI v. TORTURE CLAIMS APPEAL BOARD

HCAL 1054/2021

[2026] HKCFI 2946

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1054 OF 2021

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 “Director of Immigration” be added as the putative interested party.

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 26 July 2021, 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 15 July 2021 (“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/2021/HCAL001054_2021_files/the_Board's_ Decision.pdf

2.  The Board found that the applicant had failed to establish that he was entitled to non-refoulement protection in Hong Kong on the grounds of BOR 2 Risk[1], BOR 3 Risk[2] or Persecution Risk[3] under the Unified Screening Mechanism (“the USM”). Hence, the Board dismissed the applicant’s petition against the decision of the Director of Immigration (“the Director”) dated 6 November 2018 (“the Director’s Decision”) and confirmed the same, which rejected the applicant’s non-refoulement claim on the said grounds.

3.  The applicant had previously lodged a torture claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and his claim was refused by the Director on 30 October 2013 (“the Director’s Previous Decision”). His appeal against the Director’s Previous Decision was dismissed by the Board on 12 May 2014.

4.  Thus, the applicant’s Torture Risk[4] had been finally disposed of, and it was not necessary for the Board to assess Torture Risk again in the Board’s Decision, which is the subject matter of the Leave Application.

Amendments

5.  In Form 86, the applicant named both the Director and the Board as the putative respondents but did not name any putative interested party.

6.  In fact, only the Board should be named as the putative respondent, and the Director should be the putative interested party.

7.  Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and to add “Director of Immigration” as the putative interested party.

The applicant’s case

8.  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.

9.  In sum, the applicant claimed for non-refoulement protection because if refouled to India, he would be harmed or killed by his uncle and his cousins due to a land dispute.

Disposal on paper

10.  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

11.  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).

12.  The applicant did not advance any ground for his intended judicial review in Form 86. In his supporting affirmation dated 26 July 2021, the applicant stated that the Director’s Decision and the Board’s Decision were very unreasonable and he was not satisfied with them. The applicant mentioned that they were deciding the case based on web reports and some Indian authorities reports but not going into some that were relevant to his torture claims in India.

Discussion

13.  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.

14.  What the applicant stated in his affirmation were merely general accusations without any particulars. He failed to mention what web reports and Indian authorities reports that the Board had relied on but should not have done so, or what reports or information relevant to his torture claims in India had not been considered by the Board.

15.  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”. Thus, such general allegations cannot help the applicant at all.

16.  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).

17.  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.

18.  In assessing the applicant’s petition, the Board held an oral hearing on 22 June 2021. The applicant was present and was thus given the opportunity to present his case to the Board in person.

19.  The Board had laid out its assessment of the applicant’s claim in details in paragraphs 28 to 58 of the Board’s Decision, and it is not necessary to repeat them here.

20.  In gist, the Board found that the information/evidence given by the applicant in material aspects of his case were not believable. The Board did not believe that the two assaults by the applicant’s uncle and cousins had actually occurred. The applicant’s claimed risk was purely based on information/evidence he asserted but the Board found that such information/evidence was not credible and hence not reliable. The Board could not base on such unreliable information/evidence to reach a decision in the applicant’s favour because there was simply no foundation to form the claimed risk. Hence, the Board decided to dismiss his claim.

21.  The Board further found that, even if the information provided by the applicant in his Torture Claim Form and Supplementary Claim Form were to be accepted, the Board would still dismiss the applicant’s claim. The Board had laid out its reasons for such findings in paragraphs 59 to 70 of the Board’s Decision.

22.  The Board found that the applicant was not facing any imminent risk when he was staying in Chennai. He left India for Hong Kong only upon the suggestion of his friend. It was simply unnecessary for the applicant to leave India at that time. It was only the applicant’s speculation, without evidence in support, that the friend who helped him was killed by his uncle. The Board also found that the applicant’s uncle and cousins had no intention to carry out their threats or to seriously harm or kill the applicant’s father or brother, who were co-owners of the land in dispute.

23.  More importantly, the Board had given due consideration to the viability of internal relocation for the applicant, and concluded that it would not be unduly harsh for the applicant to relocate to areas other than his native home to avoid any perceived harm from his uncle and cousins.

24.  In relation to the applicable grounds under the USM, the Board found the applicant’s feared ill-treatment, namely being killed or subjected to torture or CIDTP[5], were unlikely to materialise. The applicant’s dispute with his uncle and cousins was private in nature and had nothing to do with race, religion, nationality, membership of a particular social group or political opinion. Thus, the applicant’s case did not fall within the scope of Persecution Risk.

25.  The Board concluded that the applicant’s claim for non-refoulement protection failed on the aforesaid applicable grounds under the USM.

26.  The finding of facts relating to a non-refoulement claim, 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. This court finds nothing wrong or unreasonable in the way the Board reached its decision.

27.  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.

28.  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

29.  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