MOHAMMED ASGAR v. TORTURE CLAIMS APPEAL BOARD

HCAL 1000/2021

[2026] HKCFI 2470

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1000 OF 2021

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

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

1.  On this court’s own motion, the applicant’s name be amended to “Mohammed Asgar”.

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 July 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 13 May 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/HCAL001000_2021_files/the_Board's_Decision.pdf

2.  The Board found that the applicant had failed to establish his claim for non-refoulement protection on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board dismissed the applicant’s appeal/petition and confirmed the decision of the Director of Immigration (“the Director”) dated 9 January 2019 (“the Director’s Decision”), which rejected the applicant’s non-refoulement claim.

Amendment

3.  The applicant spelt his own name wrong in Form 86, and hence on this court’s own motion, the applicant’s name is amended to “Mohammed Asgar”.

The applicant’s case

4.  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.

5.  In sum, the applicant claimed for non-refoulement protection because if refouled to India, he would be harmed or killed by Ram Yadav (“Ram”), the father of the applicant’s girlfriend Radhika. The applicant and Radhika were from different religions and Ram had warned the applicant not to meet or call Radhika again. When Ram found out that the applicant was still in contact with Radhika, Ram assaulted and threatened to kill the applicant.

Oral hearings

6.  The applicant requested for an oral hearing of the Leave Application and his case was heard on 16 April 2026.

7.  The applicant confirmed at the hearing that the Leave Application was in respect of the Board’s Decision only, even though he had mentioned in his supporting affirmation dated 15 July 2021 that he applied for judicial review against the Director’s Decision as well.

8.  The applicant attached a document with the title “Answer 35” to his supporting affirmation. When this court asked the applicant why he attached the said document to his affirmation, the applicant replied that the purpose was to tell the court that he still had a problem and he did not wish to go back.

9.  When this court asked the applicant for his grounds of the intended judicial review, he merely said that the Board did not understand the severity of the problem, the political problem was still there and that was why he did not want to go back.

Grounds for judicial review

10.  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).

11.  The applicant did not advance any ground for his intended judicial review in Form 86, nor in his supporting affirmation dated 15 July 2021.

12.  The document that was annexed to his supporting affirmation was just a copy of Answer 35 of the applicant’s Non-refoulement Claim Form which was submitted to the Director. It only laid out the bases of the applicant’s non-refoulement claim. It did not contain any ground for his intended judicial review at all.

13.  What the applicant said at the hearing before this court did not amount to any valid ground for the intended judicial review either.

Discussion

14.  First of all, the applicant’s problems in his country had been duly assessed but rejected by the Board. If the applicant intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.

15.  What the applicant said at the oral hearing before this court, namely that the Board did not understand the severity of his problem and the political problem was still there, were just bare allegations without any particulars.

16.  The Court of Appeal has repeatedly held that general assertions without particulars cannot be effective grounds to support a judicial review (see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; and Re Kharsu Numan [2019] HKCA 626). Further, as held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”. Thus, such general allegations cannot help the applicant at all.

17.  Moreover, as can be seen from the Board’s Decision, the Board had examined very extensive, fully-referenced country of origin information (“COI”) that was relevant to the applicant’s circumstances, including the situation in India regarding inter-caste or inter-religious marriages. It is simply untrue that the Board did not understand the severity of the applicant’s problem and the political problem there.

18.  Thus, none of the matters raised by the applicant constitutes a valid ground for challenging the Board’s Decision.

19.  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).

20.  Thus, even though the applicant has failed to establish any valid ground for challenging the Board’s Decision, this court will still scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.

21.  In assessing the appeal/petition by the applicant, the Board held an oral hearing on 1 April 2021. The applicant was present and was thus given the chance to present his case to the Board in person.

22.  As can be seen from the Board’s Decision, the Board did not challenge the credibility of the applicant’s account and assessed the applicant’s case based on what the applicant had presented to the Board.

23.  The Board found that the applicant’s dispute with Ram was purely a private and personal matter involving love relationship between different castes/religions. The applicant’s fear of ill-treatment from Ram did not fall within any of the Convention categories. The applicant failed to prove that there was severe pain or suffering that fell within the definition of torture as defined in section 37U(1) of the Immigration Ordinance. The applicant’s injuries from the assaults of Ram did not attain a minimum level of severity. There was no evidence to suggest that his treatment was inflicted by, or with the consent or acquiescence of a government official or other people acting in an official capacity.

24.  Moreover, as mentioned, the Board had examined extensive COI and found that despite shortcomings, an established police system was in place in India and there were improvements in police professionalism and concern over human rights in recent years. It was only the applicant’s mere speculation that there was no state protection offered by the Indian government. There was no strong and concrete evidence to demonstrate that if he reported his matter to the police, the police would refuse to assist him.

25.  In addition, the Board had laid out its detailed reasoning in paragraphs 56 to 65 of the Board’s Decision for concluding that it would not be unreasonable or unduly harsh for the applicant to relocate within India to avoid any harm from Ram. The Board had also fully addressed all the applicant’s concerns about internal relocation.

26.  Thus, the Board found that the applicant had not made out a case for non-refoulement protection on any of the applicable grounds under the USM.

27.  The finding of facts, including the assessment of evidence, COI and risk of harm, was solely within the ambit of the Board. The Board was entitled to make its own decision. 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.

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