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HCAL 2862/2025
[2026] HKCFI 2724
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2862 OF 2025
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BETWEEN
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Ansari, Faizan Husain Munawwar Husain |
Applicant |
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Torture Claims Appeal Board |
Putative |
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Respondent |
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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 8 December 2025 and filed on 24 December 2025, 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 21 November 2025 (“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/2025/HCAL002862_2025_files/the_Board's_Decision.pdf
2. The Board found that the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 4 September 2025 (“the Director’s Decision”) failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board dismissed the applicant’s appeal/petition and confirmed the Director’s Decision, which rejected the applicant’s non-refoulement claim.
Amendments
3. The applicant named the Board as both the putative respondent and the putative interested party in Form 86, and spelt the Board’s name wrong in the description of the putative respondent.
4. In fact, the Board should only be named as the putative respondent and the Director should be named as the putative interested party.
5. 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
6. 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.
7. In sum, the applicant claimed for non-refoulement protection because if refouled to India, he would be harmed or killed by his girlfriend’s brother, Suraj, as Suraj opposed to the cross-religious relationship between the applicant and his girlfriend. The applicant claimed to be a Muslim and his girlfriend was a Hindu.
Disposal on paper
8. The applicant did not request for an oral hearing of the Leave Application. This court is also satisfied that the Leave Application can be disposed of based on the written materials before this court. Hence, the Leave Application is dealt with on paper.
Grounds for judicial review
9. 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).
10. The applicant did not advance any ground for his intended judicial review in Form 86, nor in his supporting affirmation dated 24 December 2025. In his affirmation, the applicant merely stated that he was not satisfied with the Board’s Decision because his life was in danger in his country India and he did not want to go back.
Discussion
11. First of all, the applicant’s alleged danger 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.
12. 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).
13. Thus, despite the fact that the applicant did not advance any valid ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness, or irrationality as aforesaid.
14. In assessing the applicant’s appeal/petition, the Board held an oral hearing on 5 November 2025. The applicant was present and was thus given the opportunity to present his case to the Board in person.
15. The Board had laid out its analysis and findings on the credibility of the applicant’s claim in paragraphs 45 to 54 of the Board’s Decision, and it is not necessary to repeat them here.
16. In gist, the Board found the applicant’s evidence incredible and inconsistent. The Board disbelieved his claim that he was in fear of risk of being harmed or killed by Suraj on his return to India.
17. Nevertheless, the Board had considered the applicant’s case at its highest by assuming that his story of fearing to be harmed and killed by Suraj and the latter’s three friends for his relationship with Suraj’s sister was true. However, the Board still found the applicant not entitled to non-refoulement protection on any of the applicable grounds under the USM.
18. The applicant’s evidence was that Suraj had threatened him in 2023 and 2025, but such threats had not been followed up by Suraj. The applicant was allegedly assaulted only once by Suraj and his three friends in the first incident in 2023 with injuries which were not serious, and the verbal threat issued by Suraj in 2025 was probably uttered at the heat of an argument without any serious intention to be carried out at all.
19. The Board found that there was simply no evidence of state acquiescence in the applicant’s dispute with Suraj. The applicant’s allegation that Suraj had political connections with the ruling party Bharatiya Janata Party was unsupported. The applicant’s asserted fear, if any, was only subjective and was not supported by evidence.
20. Moreover, the applicant’s belief that the Indian police would not protect him, a Muslim, over a relationship with a Hindu girl because the Indian authorities were mostly composed of Hindus also appeared to be the applicant’s subjective assumption without evidential support. The Board found no evidence to show that the applicant would not get any reasonable assistance and protection from the police or other authorities upon his return to India.
21. Despite its finding that the applicant would not face a real risk of harm upon his return, the Board did explicitly state its reasons in paragraph 65 and 66 of the Board’s Decision as to why it found that internal relocation within India to avoid Suraj and his three friends was a viable option to the applicant. In short, the Board found that it would not be unduly harsh or unreasonable for the applicant, being an able-bodied adult with 11 years of education and many years of work experience, to relocate to other areas in India and to sustain a normal living.
22. Thus, the Board concluded that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the USM.
23. The finding of facts relating to a non-refoulement claim, including the assessment of evidence and risk of harm, was solely within the ambit of the Board in dealing with the applicant’s appeal/petition. This court finds nothing wrong or unreasonable in the way the Board reached its decision.
24. 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.
25. 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
26. For reasons aforesaid, the Leave Application is dismissed.
Dated the 13th day of May 2026
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( Gladys 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: 13/05/2026
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: 13/05/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 27169
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 1579/25 (Formerly RBCZ 5001456/25)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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