ALI ASHRAF AND OTHERS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 146/2026

[2026] HKCFI 2226

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 146 of 2026

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 1st to 4th Applicants and the 5th Applicant being absent in open court;

1.  Leave for the Applicants to apply for Judicial Review be refused; and

2.  Non-compliance with Order 80, rule 2 of the Rules of the High Court in these proceedings as a mere irregularity without rendering the application of the 4^th  and the 5^th Applicants a nullity.

Observations for the Applicants:

THE APPLICATION

1.  The 1^st applicant is the father (“the father”), the 2^nd applicant is the mother (“the mother”), the 3^rd applicant is the eldest son, aged 24 (“the 1^st child”), the 4^th applicant is the daughter, aged 13 (“the 2^nd child”) and the 5^th applicant is the younger son, aged 6 (“the 3^rd child”). The 1^st child was born in India. The 2^nd child and the 3^rd child were born in Hong Kong. They are all illegal immigrants.

2.  The applicants lodged non-refoulement claims with the Director of Immigration (“the Director”), who refused their respective claims. They appealed to the Torture Claims Appeal Board (“the Board”), which dismissed their respective appeals (“the Board’s decisions”).

3.  They applied to the Court for leave to apply for judicial review of the Board’s decisions. The father, the mother, the 1st child and the 2^nd child were applicants under HCAL 1278 of 2020. The 3 child was the applicant under HCAL 175 of 2022.

4.  By consent orders, the Board’s decisions were quashed and the actions were remitted to the Board of different constitution (“the reconstituted Board”) for re‑assessment.

5.  By Decision dated 8 December 2025 (“the Board’s Decision”), the reconstituted Board dismissed their appeals.

6.  The applicants jointly apply for leave to apply for judicial review of the Board’s Decision. Their joint application relies upon the facts of the father and the mother.

7.  The applicants appeared before the Court on 1 April 2026.

8.  The applicants applied for an adjournment because they had applied to the Department of Legal Aid and they are waiting for the result.

9.  This Court refused their application to adjourn the hearing because their application was filed on 16 January 2026. Their application for legal aid was in March 2026. There was no good reason for the delay. More importantly, this Court had considered the merits of their application and found that their application has no merit.

The applicants

10.  The applicants are nationals of India. The father lodged a non-refoulement claim with the Director that he helped his cousin to borrow 500,000 rupees from a police officer, Rehan and a councilor, who lent money on interest. His cousin disappeared with the money, and the lenders asked him to repay the money, but he was unable to do so. They then wanted him to kill the councilor’s wife, for reasons he did not know. He refused to do so. They beat him and forced him to sign a blank piece of paper.

11.  The mother stated that she and her son came to Hong Kong because they were tortured by her husband’s enemies. They fear that, if refouled, they may be harmed or killed by their enemies.

12.  Details of the facts are set out in the Board’s Decision. See hyperlink. https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2026/HCAL000146_2026_files/the_Board's_Decision.pdf

The Director’s Decisions

13.  The Director considered the applicants’ claims in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

14.  By way of Notice of Decision dated 7 July 2017 (“the Director’s 1^st Decision”), the Director assessed the claims of the parents, the 1^st child and the 2^nd child jointly on all applicable grounds and dismissed their claims on all applicable risks because they were unsubstantiated. By way of Notice of Decision dated 16 November 2020 (“the Director’s 2^nd Decision”), the Director rejected the 3^rd child’s non-refoulement claim on all applicable grounds because it was unsubstantiated. The Director’s 1^st and 2^nd Decisions are collectively called “the Director’s Decisions”.

The Board’s Decision

15.  The reconstituted Board assessed the applicants’ appeals. On 30 September 2025, the Board conducted an oral hearing for their appeals. The applicants and the Director were legally represented respectively. The parents had given oral evidence, and the Board was assisted by legal submissions from the respective parties.

16.  Having considered the evidence, the Board made the findings below.

(1)  The father is a highly untruthful witness who is prepared to fabricate and provide false claims to achieve his aim of remaining in Hong Kong. [286]

(2)  The statement from Raja is self-serving and provided to assist the father to fabricate claims for protection in Hong Kong. [296]

(3)  Other aspects of the mother’s and the father’s claims are also problematic and further indicative of the fact that the entirety of their claims have been fabricated. [297]

(4)  The Board rejected the mother’s evidence. [299]

(5)  The Board had considered the claims made by the father, mother and the 3^rd child regarding their medical conditions and their views that they will not obtain appropriate medical care in India. [309]

(6)  The Board did not accept that they will have to obtain counterfeit drugs or unable to access emergency services if needed. [316]

(7)  The Board did not accept that they will be denied health care or appropriate medical treatment if they return to India. [317]

(8)  The Board did not accept that because of deficiency of medical care in India, the father, the mother, or the 3^rd child will suffer a significant reduction in life expectancy. [327], [322] & [344]

(9)  The Board considered other child specific issues of vulnerability of being kidnapped or raped or forced into child labour or discrimination because of gender; or disability of the 3^rd child, finding that all these did not sustain. [345]-[350]

(10)  The family may return to their home city of Kolkata without fear of any of the applicable risks. [351]-[356]

17.  For the reasons above, the Board dismissed their appeal and confirmed the Director’s Decision.

Application for leave to apply for judicial review

18.  The applicants filed Form 86 on 13 January 2026 for leave to apply for judicial review of the Board’s Decision.

19.  The applicants did not raise any specific ground to challenge the Board’s Decision.

DISCUSSION

20.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicants’ appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

21.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the father said that the duty lawyer before the Board had presented their case to the Board fully. The mother said that the Board was wrong because it did not accept their evidence and their enemies are still looking for them.

22.  The Board had conducted a comprehensive consideration of all the relevant issues relating to the parents and the children. The minors’ specific issued were also considered separately. There is no reason for this Court to interfere with the Board’s Decision.

23.  The applicants therefore fail to show that there is any realistic prospect of success in their proposed judicial review.

DISPOSITION

24.  I refuse to grant leave to the applicants to apply for judicial review of the Board’s Decision. Accordingly, I dismiss their joint application.

25.  I shall treat non-compliance with Order 80, rule 2 of the RHC in these proceedings as a mere irregularity without rendering the application of the 2^nd child and the 3^rd child a nullity.

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