MOHAMMED ANWAR KHAN AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1005/2022

[2026] HKCFI 4307

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1005 of 2022

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

1.  The Form 86 be amended on the court’s own motion.

2.  The 1^st and 2^nd applicants’ application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 27 September 2022, the 1^st and 2^nd applicants (who are respectively husband and wife) applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 18 August 2022 (“Board’s Decision”) dismissing the applicants’ joint appeal against the joint decision of the Director of Immigration (“Director”) dated 10 August 2018 rejecting the applicants’ non-refoulement claims (as well as the claim of one of their adult sons in the same joint decision) on all applicable grounds[1] except the risk torture ground which had been previously dismissed by the Director on 27 January 2012 in a separate decision. The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2022/HCAL001005_2022_files/the_Board's_Decision.pdf

2.  In their Form 86, the applicants named the adjudicator of the Board as the proposed respondent as well as the interested party. As the Board should be the proper putative respondent and the Director the putative interested party, the Form 86 shall be amended on the court’s own motion.

3.  The applicants were Sunni Muslims from India and the 1^st applicant was a supporter of the Bharati Janta Party (“BJP”). The basis of the applicants’ overlapping claims was that, if refouled to India, they would be harmed or killed by (i) the Shia Muslims and the members of the Communist Party of India (Marxist) (“CPI(M)”), which was the BJP’s political opponent. Separately for the 2^nd applicant, her claim was based on her fear of ill-treatment from her Shia neighbours and from members of the CPI(M). The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them. Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

4.  At the applicants’ request for a hearing of the Leave Application, this court scheduled a hearing on 21 July 2026. The applicants attended the hearing in person. After having heard from them, this court informed them that the decision would be reserved, and be sent to their updated address.

Discussion

5.  A leave application operates as a “filtering” process. Hence, there is no requirement or expectation to give elaborate reasons for my decision.[2] It is therefore sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

6.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[3], and further to make full and frank disclosure of all material facts to be verified by an affidavit. In the Form 86, the applicants averred that the Board’s Decision was unreasonable and irrational, and the Board had acted in a procedurally unfair manner. They also alleged that the Board had relied on outdated sources when considering their case. The supporting contained no such grounds.

7.  At the hearing, the 1^st applicant submitted that he together with the 2^nd applicant have been living in Hong Kong for a long time. Both of their sons who have married to Hong Kong residents are living in Hong Kong. Their grandchildren are also in Hong Kong. The 1^st applicant stated that he has no criminal record in Hong Kong and has no family and relatives in India any more. It would be very difficult for them to return home.

8.  The 2^nd applicant also made separate submissions. She stated that there is now nothing left in India, including the removal of her name from the voting register. She said that as Muslims, they would be targeted at home. She has multiple medical issues and wishes to stay in Hong Kong which can offer them protection.

9.  As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality.[4]  The applicants and the Director were both legally represented at the hearing before the Board. Despite the overlapping circumstances of the claims of each of 1^st and 2^nd applicants, the Board assessed their evidence together and also separately in relation to the evidence unique to each of the applicants. Regarding the 1^st applicant’s claim, the Board found that his claim was multifaceted and had evolved in the course of the past 17 years. The Board therefore decided to assess the 1^st applicant’s claim by starting at the beginning and working through the various reasons the 1^st applicant gave for the reasons to flee India. The Board considered and analyzed the 1^st applicant’s account under different headings with reference to the different significant events. On the whole, the Board found that the 1^st applicant’s account of these events was not credible or reliable, but mostly implausible as it was either unsupported by the searches and inquiries the Board made, or totally flawed. The Board rejected the 1^st applicant’s appeal.

10.  Regarding the 2^nd applicant, the core of her evidence was the purported forced sale of their home at a gross undervalue. After having examined the evidence regarding the Deed of Sale, the Board found that the claim surrounding the ownership and sale of the property was unreliable and incredible. The Board rejected the 2^nd applicant’s reason for fleeing from India on the purported ground of threat from her neighbours or due to any animosity from others towards the 1^st applicant. It found that her coming to Hong Kong was by choice.

11.  In conclusion, the Board considered that the 1^st and 2^nd applicants would not be subjected to any claimed fear of harm, if refouled to India. Though the 1^st applicant had previously travelled to Hong Kong by using a forged Bangladeshi passport, the Board did not accept that the 1^st applicant would not be issued with an Indian passport as he is an Indian national. The Board further found that state protection and internal relocation would be reasonably available. These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

12.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness. The grounds stated in their Form 86 were general and lacked particulars. Their oral submissions at the hearing that they have lived in Hong Kong for many years and it was important that they should live with their sons in Hong Kong are not relevant to the Leave Application. The applicants have not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision. The applicants’ intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[5].

Orders

13.  The Form 86 be amended on the court’s own motion.

14.  The 1^st and 2^nd applicants’ application for leave to apply for judicial review be 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