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HCAL 2472/2020
[2026] HKCFI 2460
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2472 OF 2020
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BETWEEN
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Mohammed Nadeem |
Applicant |
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and |
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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. 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 21 December 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 December 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/HCAL002472_2020_files/the_Board's_Decision.pdf
2. The Board found that the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 14 November 2018 (“the Director’s Decision”) failed on all the applicable grounds (except Torture Risk[1]) under the Unified Screening Mechanism (“the USM”). Hence, the Board affirmed the Director’s Decision, which rejected the applicant’s non-refoulement claim.
3. The applicant had previously made a torture claim and his claim was rejected by the Director on 31 December 2013. The applicant did not appeal against the Director’s decision in respect of his torture claim. Thus, the applicant’s Torture Risk had been finally disposed of, and it was not necessary for the Board to consider this risk again in the Board’s Decision.
Amendments
4. In Form 86, the applicant named “Torture claim and Appeal Board and Director of Immigration Genaral” as both the putative respondents and the putative interested parties, when only the Board should be named as the putative respondent and only the Director should be named as the putative interested party.
5. This court therefore 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
6. 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.
7. In sum, the applicant claimed for non-refoulement protection because if refouled to India, he feared he would be harmed or killed by a man named Amin, since the applicant had borrowed a sum of 800,000 Indian Rupees from Amin in 2008 or early 2009 and was unable to repay the loan.
Oral hearing
8. The applicant requested for an oral hearing and his case was heard on 16 April 2026.
9. When this court asked the applicant to elaborate on the grounds of his intended judicial review that were contained in a document annexed to his supporting affirmation dated 21 December 2020, the applicant said that he could not go back and he had other grounds to submit, as after his application, there were some changes in India and he had more supporting documents now.
10. This court then explained to the applicant that he could not use those new documents that were not placed before the Board to say that the Board had made mistakes.
11. The applicant then said that there was torture from the man he borrowed money. The man tortured the applicant’s sister, and the applicant’s brother left. The applicant’s family could not find the brother. The torture increased day by day. The government’s new policy was not supporting or helping the applicant. The political situation was getting worse day by day in India. These were the reasons why he could not go back.
Grounds for judicial review
12. 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).
13. The applicant did not identify any grounds for the intended judicial review in Form 86.
14. In a handwritten document that was annexed to the applicant’s supporting affirmation, he mentioned that he was not satisfied with the Board’s Decision and all of his problems were ignored. His life was in danger in his country as he would be killed by Amin, who was a very powerful and a well-known politician in his area. Amin became more powerful as he became a member of the National Security Service (Home Guard) Department and had the illegal gang party for support. Amin could now do anything with his position and the police would not take action against him. The applicant also mentioned his concern over the Covid-19 pandemic and he felt that it would not be safe for him to go back to his country.
15. It is clear that what the applicant stated in the said written document could not be any valid ground for the intended judicial review, as they were just some alleged facts that the applicant wanted to rely on for his non-refoulement claim.
16. Likewise, what the applicant said at the oral hearing before this court did not constitute any valid ground for his intended judicial review either.
Discussion
17. First of all, the applicant’s assertions in the document annexed to his affirmation mentioning that Amin became more powerful and was now in the National Security Service (Home Guard) Department, etc, as well as his fear of return to India due to the Covid-19 pandemic, were not presented before the Board for assessment. His evidence at the oral hearing before this court, such as Amin had tortured his sister and his brother had left, were also not placed before the Board for the assessment of his non-refoulement claim.
18. 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.
19. 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.
20. Thus, the applicant cannot rely on matters not raised before the Board, or any new evidence he intended to submit to this court in support of his non-refoulement claim, as a ground for his intended judicial review. This court will not take on the role of the primary decision-makers and re-assess his non-refoulement claim.
21. The applicant’s case, including his alleged danger and whether he could relocate internally, had been duly assessed by the Board. If the applicant intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.
22. 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).
23. Thus, even though the applicant has failed to establish any valid ground for challenging the Board’s Decision, this court will still scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.
24. In assessing the applicant’s appeal/petition, the Board held an oral hearing on 25 May 2020. The applicant was present and assisted by an interpreter. Thus, the applicant was given the chance to present his case to the Board in person.
25. As can be seen from paragraphs 19 to 21 of the Board’s Decision, the Board found the applicant’s account was incoherent and contained many significant discrepancies with the story he had given to the Director. The applicant even changed his evidence in the middle of the hearing to reverse what he had told the Board so that it more closely aligned with the story he had given to the Director. The applicant could not explain why he did that, except to say that the events happened long time ago. Thus, the Board attached no credence at all to the applicant’s claim.
26. The Board also considered that the serious delay on the part of the applicant in making his non-refoulement claim damaged his credibility. The Board was entitled to do so.
27. Thus, the Board concluded that the applicant’s account was not credible.
28. Moreover, the Board found that there was no evidence, even on the applicant’s account, to suggest that the applicant was subjected to serious harm. The Board considered that the treatment of the applicant did not rise to the minimum level of severity. The applicant had failed to establish a well-founded fear of persecution on account of any of the protected grounds in the Refugee Convention.
29. In assessing whether there was a sufficiency of protection for the applicant in India, the Board took into account that the applicant had not followed up on his complaint to the police or otherwise tried to engage the authorities. The applicant’s claim that the authorities were unable or unwilling to protect him was untested and, therefore, fanciful. The Board found that there were constitutional provisions and domestic laws aimed to uphold the rights of people affected by crimes or civil wrongs.
30. Moreover, the Board had discussed in paragraphs 32 to 35 of the Board’s Decision the option of internal relocation for the applicant. It was the applicant’s own evidence that his problems were localised to his home. The Board considered that there were no obstacles to the applicant’s internal relocation to another part of India.
31. The Board thus concluded that the applicant failed to establish his claim for non-refoulement protection on all the applicable grounds (except Torture Risk) under the USM.
32. The assessment of evidence, country of origin information and risk of harm was primarily within the sole ambit 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 decision.
33. 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.
34. 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
35. For reasons aforesaid, the Leave Application is dismissed.
Dated the 29th day of April 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: 29/04/2026
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: 29/04/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 14526/18/11/369/IN2873
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 4130/18 (formerly as RBCZ 2002175/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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