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HCAL 343/2021
[2026] HKCFI 533
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 343 OF 2021
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BETWEEN
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Ali Azhar |
Applicant |
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and |
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Torture Claims Appeal Board |
Putative 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 15 March 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 2 March 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/HCAL000343_2021_files/the_Board's_Decision.pdf
2. The Board found that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board rejected the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 30 April 2018 (“the Director’s Decision”) and confirmed the same.
Amendments
3. In Form 86, the applicant named “Anthony W.M. Yuen Member of the Torture Claims Appeal Board” as the putative respondent and the Board as the putative interested party.
4. Mr Yuen was making the Board’s Decision as a member of the Board. Thus, the Board should be named as the putative respondent instead.
5. Further, the Director, not the Board, should be the putative interested party.
6. Thus, this court 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
7. 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.
8. In sum, the applicant claimed for non-refoulement protection because if refouled to India, he would be harmed or killed by his creditor Bablu Khan (“Khan”) as he was unable to repay his loan in the amount of 50 Lakhs (around 5 million Indian Rupees). The applicant claimed that Khan was involved with The All India Trinamool Congress and in command of a big group of gangsters in Kolkata.
Oral hearing
9. The applicant requested for an oral hearing of the Leave Application and his case was heard on 8 January 2026.
10. When this court asked the applicant for the grounds of his intended judicial review, the applicant merely said that the application was filed a long time ago and as he had brain thyroid problem, he had forgotten everything mentioned in his documents. The applicant alleged that he had brain thyroid problem even back in India. He had told the officer of the Immigration Department and the Board about this problem and that he could not remember things.
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. However, the applicant did not assert any ground for his intended judicial review in Form 86, nor in his supporting affirmation dated 15 March 2021.
13. What the applicant said at the oral hearing did not amount to any valid ground for judicial review either.
Discussion
14. First of all, this court notes from paragraph 42 of the Board’s Decision that the applicant clarified to the Board that he had difficulty remembering the time he raised the loan but it should be around 2008 or 2009. However, the applicant did confirm to the Board that he adopted all the information contained in the hearing bundle and the contents of which were all true and correct.
15. In fact, in the Director’s Decision, the Director also mentioned that the applicant claimed to have been suffering from memory problem since he was 5 years old. He received medical treatment when he was young in India. He stopped seeing a doctor later as he could not afford the medication. He was not entirely sure what kind of illness he had.
16. However, as revealed from his submission and his response during the interview, the Director found that the applicant could recall well in sequence the incidents he submitted for his claim and the trip he made from India to Hong Kong. The applicant also managed to recall and tell his personal and family background to the case officer and state out the reason for his coming to Hong Kong. The Director also noticed that the applicant could live independently in Hong Kong and there was nothing in his claim to suggest that he had any difficulties in leading his own life.
17. Thus, the Director found that the applicant did have a clear and good mindset, and his claimed memory problem did not have any prohibitive effect in his life that prevented him from thinking logically. Besides, the fact that he managed to interact and communicate well with the case officer and the interpreter suggested that he was not mentally unsound.
18. It is clear that the applicant’s alleged memory problem had been addressed by the Director and the Board, but both the Director and the Board did not find it a problem for the applicant to present his case to them.
19. More importantly, the Board did not reject the applicant’s appeal/petition on the applicant’s credibility but assessed his claims based on what he had asserted. If the applicant intends to challenge the Board’s finding of facts, it is not permissible in a judicial review.
20. 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).
21. Thus, despite the lack of any valid ground being advanced by the applicant for the intended judicial review, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality.
22. In assessing the appeal by the applicant, the Board held an oral hearing on 16 November 2020 and the applicant was present. Thus, the applicant did have the opportunity to present his case to the Board in person.
23. As can be seen from the Board’s Decision, the Board gave detailed reasons as to why it concluded that the applicant had failed to establish a case for non-refoulement protection on all the applicable grounds under the USM.
24. The Board found that the applicant’s fear only arose from his inability to repay a loan, which was a private matter. Based on the evidence, the Board found Khan was never serious in carrying out his threat to kill the applicant. His threat was just a measure to pressurise the applicant to repay the loan. The Board did not consider the ill-treatment and injuries he sustained were so severe as to amount to torture or reach a minimum level of severity. There was no involvement of government officials or anyone acting in the government capacity in the applicant’s dispute with Khan. His fear of ill-treatment did not fall within any of the Convention categories. Thus, the Board found no real risk that the applicant would suffer ill-treatment or otherwise be killed by Khan and his people if he returned to India.
25. Moreover, the Board found from country of origin information (“COI”) that although corruption was not uncommon amongst the police force and other government officials in India, reforms were going on to improve police efficiency and combat corruption. The applicant had in fact never sought assistance from the police.
26. The Board also found that there should be viable options for the applicant to settle at an alternative place in India. There was no evidence to show that Khan was powerful and resourceful enough to locate the applicant all over India, which is a large country with huge population. Although the applicant received no education, he had extensive work experience including running his own business. The Board considered that the applicant should have no difficulty to relocate to another city and find a job to avoid Khan if he was to return to India.
27. 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.
28. 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.
29. 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
30. For reasons aforesaid, the Leave Application is dismissed.
Dated the 28th day of January 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 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:
28 January 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:
28 January 2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 11585/18/5/170/IN2290
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 1013/18
(Formerly RBCZ/11987/16)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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