ARUMUGAM NALLUCHAMY v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2753/2025

[2026] HKCFI 4739

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2753 of 2025

Application for Leave to Apply for Judicial Review

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

Following;

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

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 12 December 2025 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 17 November 2025 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision refusing his application for non-refoulement protection (the “Notice”).

2.  The Applicant had not requested an oral hearing. Having considered the nature of the application and issues raised, the Decision, the Notice, the papers, and all the circumstances, the Court considered that the application be justly determined on paper without an oral hearing.

Background

3.  The Applicant is an Indian national, now aged 29. He arrived in Hong Kong on 27 December 2024 as a tourist and overstayed since 11 January 2025. He surrendered to the Immigration Department and then lodged a non-refoulement claim by written signification on 28 July 2025. In due course, his claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. His claim was rejected by the Director’s Notice. His appeal against the Notice was dismissed by the Board’s Decision. He now applies for leave to apply for judicial review of that Decision.

The Applicant’s case and Board’s Decision

4.  The Applicant’s personal background, the basis of his claim, the arguments he advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision. These will not be repeated here. The hyperlink to the Board’s Decision is included below[5] for reference. In gist, he claims, if returned to India, he will be harmed or killed by a member of the parliament (“S”) affiliated with the Dravida Munnetra Kazhagam political party in Tamil Nadu (the “DMK”) because his father refused to sell a piece of land to S.

5.  His case as advanced by him in his non-refoulement claim form (“NCF”) is as follows. S is a member of the parliament and affiliated with the DMK and a land owner. S had held a grudge against his father since 2019 for refusing to sell S a piece of land owned by his father. In 2024, the Applicant’s father bought two acres of residential land in Tamil Nadu (the “Land”). Again, S asked his father to sell the Land to him. The Applicant’s father refused. One day in July or August, S and 30 men confronted the Applicant’s parents and assaulted them (the “first incident”). The Applicant’s father made a report to the police but no arrest was made. In early December, S along with 10 men visited the Applicant’s home and expressed discontent to the Applicant. He demanded the Applicant’s father to sell the Land to him (the “second incident”). When his father replied that the Land was intended for the Applicant, S threatened to kill the Applicant. Eventually, S and his men left without doing the Applicant and his parents any harm. On his friends’ suggestion, the Applicant came to Hong Kong on 27 December 2024 to seek protection. A few days later, the Applicant’s father told the Applicant that he had another encounter with S who threatened to kill the Applicant (the “third incident”).

The finding of the Board

6.  The Applicant testified before the Board. He claimed that the Land was intended by his father to be inherited by him, but demonstrated a low level of knowledge about the particulars and ownership of the Land. The Board considered his claim over S’s interest in the Land unreliable and incredible. It found it implausible and unreasonable for S to target the Applicant only but not his siblings or other family members. The Applicant could not explain how his death would enable S to achieve his wishes. While asserting S was famous, influential and a member of the parliament affiliated with the DMK, the Applicant could give no details or particulars about S. The Board found there was no evidence that S existed at all. It found the crux of the Applicant’s case, his father’s ownership of the Land, S’s existence and intention to harm the Applicant for the purpose of seizing the Land were all incredible and unreliable. Hence, it found the Applicant had failed to establish the factual basis to support his claim for protection and dismissed his appeal. This is the Board’s primary decision.

7.  For completeness, the Board went on to assess the Applicant’s claim on the basis of the case as he asserted. It made certain other finding of facts based on his case and country of origin information(“COI”). It found the Applicant’s evidence about the first incident and S’s threat to kill him in the third incident were all hearsay based on what he was told by his father and not from his own experience. The Applicant accepted that he had no evidence that the attack took place. Thus, the Board gave his evidence little weight. Even if the attack had in fact taken place, on the Applicant’s evidence and the injuries sustained by his parents were mild injuries only. His father was discharged from hospital after three days without requirement for surgery, operation or follow-up treatments, while his mother was discharged on the same day. As for the second incident, even if it existed, it is the Applicant’s evidence that he and his parents were untouched and not harmed at all. The Board found there was no evidence that S had real intention to harm or kill the Applicant. In relation to the third incident, the Applicant said in his NCF that his father told him on the phone that S had threatened to kill him. However, in his testimony before the Board, he said his father never talked about S in his telephone calls after he came to Hong Kong. The Board was not satisfied that S had approached the Applicant’s father and threatened to kill the Applicant.

8.  The Applicant agreed with the Board that there was no sensible reason for S to harm or kill him. He never sustained any injuries. His parents and family members remained untouched or unharmed in India. He was never called or reached by S while he is in Hong Kong. He had no further updates about S since his arrival in Hong Kong. Given the low intensity of S’s acts against the Applicant, the Board found there is no reliable evidence that S had been eagerly pursuing the Applicant and had real intention to hunt him down so as to extort interest in the Land. It found there are no grounds to believe that the Applicant would be tortured or seriously harmed by S if he was to return to India. No ill-treatments had been inflicted on the Applicant, let alone those attaining a minimum level of severity. Hence, the Board found there is not a real and personal chance that the Applicant would suffer serious harm in future, if he is to be refouled.

9.  It found the dispute between the Applicant and S is a private dispute. There was no reliable evidence that S had connection with the Indian government or any political parties, or persons able to wield the authority of the Indian government and/or the state. There was no evidence that the government, the state and/or other authorities in India have acquiesced in the alleged ill-treatment of the Applicant. The Applicant never suffered any injuries in the three incidents and there was no or no reliable evidence that S had ill-treated him with an intention under the definition of “torture” in section 37U(1) of the Immigration Ordinance or that the ill-treatment had any relevance to the interest and/or benefit of the Indian government or nexus to any of the reasons enumerated under the 1951 Convention relating to the status of Refugees and its 1967 Protocol (“Convention reason”).

10.  On the basis of authoritative and credible COI, the Board found reasonable state protection would be available to the Applicant on his return to India and there was no or no reliable evidence that the state of India was unwilling or unable to afford him protection or to help him for a Convention reason.

11.  Applying the law applicable to the non-refoulement protection under the USM to the Applicant’s claim as he asserted and to the further facts it found, the Board found in the further and alternative that the Applicant had failed to establish his entitlement to protection under any of the applicable grounds under the USM.

12.  For these reasons, the Board dismissed the Applicant’s appeal against the Director’s Notice.

Legal principles applicable to judicial review

13.  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[6].

Grounds for judicial review

14.  The Applicant had not advanced any grounds of application in his Form 86. In his supporting affirmation, he reiterated that his life would be in danger, if returned to India because his enemy, ie S, is very strong. He asks the Court to “search [his] case deeply” and said his “problem [is] not small”. In effect he is asking this Court to rehear his case which this Court has no power to do. His ground is also a direct challenge of the Board’s finding of fact, which is impermissible. In the absence of particularised grounds of application, the Court in an application for judicial review could only focus on errors of law, procedural unfairness and irrationality in the Decision.

Overall scrutiny

15.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.

16.  The Board considered the evidence carefully and tested it against common sense and inherent probability. It found the Applicant’s evidence was mainly hearsay and internally inconsistent and implausible. The primary basis of its decision is that it did not accept his evidence and found he had failed to establish the factual basis to support his claim for non-refoulement protection. It nevertheless, for completeness, assessed the Applicant’s claim on the basis of the case as he asserted, some further finding of fact based on his case and the COI. It found in the further and alternative that even on that basis, the Applicant is not entitled to protection under any of the applicable grounds under the USM. This is the secondary or alternative of the Board’s Decision. The Board’s findings under its primary basis and alternative basis are mixed findings of law and of fact. Insofar as its finding of law is concerned, the Board is absolutely correct. Insofar as its finding of fact is concerned, it is exclusively within the realm of the Board, which the Court in a judicial review will not interfere, save when such finding was made as result of error of law or procedural unfairness or irrationality in the Decision. The Board gave reasons for its finding. On the evidence, it was open to the Board to make the finding of fact as it did. The Court could detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant had failed to discharge his burden of proving his fears and risks. The proposed judicial review has no realistic prospect of success.

Conclusion

17.  For the above reasons, the Applicant’s leave application is refused.

Form CALL-1