Ali Ashraf and Others v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
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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;
Order by Deputy High Court Judge K.W. Lung:
Observations for the Applicants: THE APPLICATION 1.The 1st applicant is the father (“the father”), the 2nd applicant is the mother (“the mother”), the 3rd applicant is the eldest son, aged 24 (“the 1st child”), the 4th applicant is the daughter, aged 13 (“the 2nd child”) and the 5th applicant is the younger son, aged 6 (“the 3rd child”). The 1st child was born in India. The 2nd child and the 3rd 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 2nd 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:
14.By way of Notice of Decision dated 7 July 2017 (“the Director’s 1st Decision”), the Director assessed the claims of the parents, the 1st child and the 2nd 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 2nd Decision”), the Director rejected the 3rd child’s non-refoulement claim on all applicable grounds because it was unsubstantiated. The Director’s 1st and 2nd 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.
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 2nd child and the 3rd child a nullity. Dated the 29th day of April 2026
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
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Cases cited in this judgment