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HCAL 235/2023
[2026] HKCFI 943
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 235 OF 2023
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BETWEEN
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Sesuraj John Arockiadhas |
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 applicant be amended to “Sesuraj John Arockiadhas”, “Torture Claims Appeal Board” be added as the putative respondent, the name of the putative interested party be amended to “Director of Immigration” and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 10 February 2023”.
2. The applicant’s application to withdraw the application for leave to apply for judicial review be refused.
3. 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 16 February 2023, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision dated 27 October 2021 without identifying the decision-maker.
2. The Torture Claims Appeal Board (“the Board”) made a decision dated 10 February 2023 (“the Board’s Decision”) regarding the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 27 October 2021 (“the Director’s Decision”). It is clear that the date of the decision referred to in Form 86 was the date of the Director’s Decision. However, the applicant annexed a copy of the Board’s Decision instead of the Director’s Decision to his supporting affirmation dated 16 February 2023.
3. Since the Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali [2018] HKCA 549), the subject matter of the Leave Application should only be 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/2023/HCAL000235_2023_files/the_Board's_Decision.pdf
4. The Board found that the applicant’s claim for non-refoulement protection in Hong Kong was not made out on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board dismissed the applicant’s appeal/petition against the Director’s Decision and confirmed the same.
Amendments
5. In Form 86, the applicant stated his own name incorrectly. According to the applicant’s recognizance document, his name should be “Sesuraj John Arockiadhas”.
6. He did not name any putative respondent and named the Board as the putative interested party but spelt the Board’s name wrong.
7. In fact, the Board and the Director should be named as the putative respondent and the putative interested party respectively.
8. As mentioned, the decision in respect of which relief is sought in the Leave Application should just be the Board’s Decision.
9. Thus, this court makes an order on its own motion to amend the name of the applicant to “Sesuraj John Arockiadhas”, to add the Board as the putative respondent, to amend the name of the putative interested party to “Director of Immigration” and the decision in respect of which relief is sought to “Torture Claims Appeal Board’s decision dated 10 February 2023”.
The applicant’s case
10. 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.
11. In sum, the applicant claimed for non-refoulement protection because if refouled to India, he would be seriously harmed or killed by his enemies from the Rashtriya Swayamserak Sangh, the Bharatiya Janata Party (“BJP”) and the police due to his opposition to the policy and treatment of the BJP government of Tamils in India and Sri Lanka.
Withdrawal of the Leave Application
12. Before the Leave Application was dealt with, the applicant filed an ex parte application by way of his affidavit dated 8 August 2025 to withdraw the Leave Application.
13. As stated in the applicant’s said affidavit, he wanted to withdraw the judicial review because he had his health issue and needed medical treatment in his country India. However, he did not indicate that it was safe for him to return nor his problems in his home country had been resolved.
14. On 2 October 2025, the Director informed this court that the applicant was removed during the period from 22 September 2025 to 28 September 2025.
15. 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 despite he had requested one previously.
16. 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.”
17. 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
18. 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).
19. In Form 86 and the applicant’s supporting affirmation dated 16 February 2023, the applicant only mentioned that his life was threatened in his mother country by political and extremist groups, and it was not safe for his life in India.
Discussion
20. First of all, the applicant’s claimed risks had been fully assessed but rejected by the Board. If the applicant intends to challenge the Board’s finding of facts, it is not permissible in a judicial review.
21. 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).
22. 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.
23. In assessing the applicant’s appeal/petition, the Board arranged an oral hearing on 13 May 2022 and the applicant was present. Thus, the applicant did have the opportunity to present his case to the Board in person.
24. As can be seen in paragraphs 23, the Board found a number of discrepancies in the applicant’s evidence that affected the veracity of his claimed risks. The applicant also failed to provide any documents in support of his claim as discussed in paragraph 24 of the Board’s Decision. The Board concluded in paragraph 52 of the Board’s Decision that it was unlikely that the applicant would be tortured or ill-treated on his return to India and the risk of danger on his return after 3 years was low.
25. Even on the applicant’s own evidence, he was never tortured or ill-treated except for one occasion when he was kicked by someone on a passing motorcycle and he did not sustain any injury as a result. The evidence showed that he was not harmed, tortured or ill-treated before he left India in spite of his active involvement in political activities in 2018-2019.
26. With regards to his claim that he was charged with an offence, the applicant did not produce the police summons, the charge sheet or the First Information Report on the offence he was accused of infringing, despite being given ample time to do so. The Board found there was simply no evidence on the nature of the offence the applicant claimed he faced in India. The fact that he could remain in his home area and could leave India without any problems showed that even if such an offence existed, it would only be a minor one.
27. The Board further found that from the evidence adduced, the harassment the applicant experienced was due to his political opinion rather than his Christian faith. It was unlikely that he would encounter torture or ill-treatment due to his religion on his return to India.
28. Moreover, the Board found from extensive country of origin information (“COI”) that despite setbacks, the Indian government had been taking steps to improve the effectiveness and the conduct of the police. The Board found that state protection would be available to the applicant. In fact, the applicant never sought police assistance in India against the alleged harassment he faced.
29. The Board also found internal relocation to be a viable option for the applicant should he feel returning to his hometown in Sivagangai to be undesirable. The risk of his clashing with his enemies was extremely low in a big city. The applicant had many years of experience as a skilled welder and factory foreman. He also had experience in working overseas. The Board found that he should be able to find employment in any one of the big cities in India, or to relocate to areas in India where large Christian communities were located.
30. Thus, the Board found that the applicant’s claim for non-refoulement protection was not substantiated on all the applicable grounds under the USM.
31. The assessment of evidence, COI and risk of harm was primarily within the realm 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 conclusion.
32. 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.
33. 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
34. For reasons aforesaid, the application to withdraw the Leave Application is refused and the Leave Application is dismissed.
Dated the 16th day of February 2026
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(Irene 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 his 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:
16 February 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: 16 February 2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 19180
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 1075/21
(formerly as RBCZ/10863/20)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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