Tobocman, David Cory v. Torture Claims Appeal Board
Read the full judgment text of HCAL 349/2025 on BabelCite. This High Court CFI judgment was delivered on 20 May 2026.
1. By way of Form 86 dated 3 February 2025 and filed on 7 February 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 31 December 2024 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-
Cites 8 cases
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HCAL 349/2025 [2026] HKCFI 2927 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 349 OF 2025
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:
Observations for the applicant: The Leave Application 1.By way of Form 86 dated 3 February 2025 and filed on 7 February 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 31 December 2024 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:- 2.The Board found that the applicant was unable to make out his claims for non-refoulement protection in Hong Kong on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board rejected the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 14 October 2024 and confirmed the same, which rejected his non-refoulement claim. Amendments 3.The applicant named the Board / Non-refoulement Claims Petition Office as the putative respondents and did not name any putative interested party in Form 86. 4.In fact, only the Board should be the putative respondent and the Director should be the putative interested party. 5.The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board and should not be named as a putative respondent at all. 6.Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”, and to add “Director of Immigration” as the putative interested party. The applicant’s case 7.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. 8.In sum, the applicant claimed for non-refoulement protection because if refouled to the United States of America (“the USA”), he would be harmed, ill-treated or killed by a moneylender in his home area named Jose Cruz (“Jose”) and/or the Gambino crime family due to his failure to repay a large sum of money owed to Jose. The applicant claimed that Jose was linked to the Gambino crime family, a notorious mafia organisation based in New York, with Italian-American roots. Disposal on paper 9.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 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. In his supporting affidavit dated 7 February 2025, the applicant only mentioned that both the Director’s Decision and the Board’s Decision were unfair. In the written submission annexed to his affidavit, he mentioned a few grounds, which are summarised as follows:-
Discussion 12.First of all, the Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali, [2018] HKCA 549). Thus, this court will only deal with the applicant’s challenge against the Board’s Decision, which is the only subject matter of the Leave Application. 13.With regards to Ground (1) as summarised above, the applicant’s danger upon returning to the USA had been duly assessed by 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. 14.Similarly, the findings of the Board in relation to the viability of internal relocation and the availability of state protection, as challenged by the applicant in Grounds (3) and (4) summarised above, were also the results of fact finding, which were within the exclusive ambit of the Board. This court will not interfere with the Board’s finding of facts unless there were errors of law, procedural unfairness or irrationality in the Board’s Decision. 15.The applicant’s assertion that his cousin had asked him not to return to the country had already been presented before the Board for assessment. This court finds no reason to disturb the Board’s findings in this regard. 16.Finally, the applicant’s complaints in Grounds (2) and (6) were asserted without any specificity. The applicant failed to specify which points laid out by the Board were not accurate or did not depict the reality of his problems; nor did he mention which facts and information pertaining to his case were not considered by the Board. 17.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”. 18.Thus, such general allegations that the points laid out by the Adjudicator of the Board were not accurate or did not depict the reality of his problems, or that the Board failed to consider all the facts and information pertaining to his case, cannot help the applicant at all. 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, 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. 21.In assessing the appeal/petition by the applicant, the Board held an oral hearing on 18 December 2024. 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 gave full and detailed reasoning in rejecting the applicant’s claims. 23.The Board had laid out its findings on the credibility of the applicant and his claims in paragraphs 42 to 45 of the Board’s Decision, and it was not necessary for this court to repeat the same here. 24.In gist, despite the applicant’s very serious delay in lodging his non-refoulement claim that was detrimental to his credibility, the Board accepted the basic facts that the applicant was involved in a loan dispute with Jose, he received verbal threats from time to time and that he might be subjectively afraid of being harmed or killed by Jose if he were refouled. However, the Board rejected any link between Jose and the Gambino family as being hearsay which was unsupported by evidence. 25.Moreover, the Board found no, or no reliable evidence to show (and the Board did not accept) that (1) anyone would harm or kill the applicant if he were to return to the USA; (2) the applicant faced risk throughout the USA; (3) the applicant suffered injuries or sufferings to the required severity (the applicant was in fact never harmed); and (4) the government/authorities would be unwilling to help the applicant for a Convention[1] reason. 26.The Board found that Jose had lent money to the applicant in a personal capacity and Jose is a non-state actor. There was no evidence to suggest that the applicant’s loan dispute with Jose involved either the government or any of its officials. The applicant was not targeted in the past on account of race, religion, nationality, membership of a particular social group or political opinion but in relation to a private loan dispute only. Thus, the applicant was not targeted for a Convention reason. Similarly, the lack of state involvement and severe sufferings in the applicant’s case indicated that his case did not satisfy the elements of torture as defined in section 37U of the Immigration Ordinance. 27.On the issue of state protection, the Board found that the applicant’s general and bare criticism of the police that they would not help him was his own speculation. Even if the police would not assist him as claimed, there were organisations such as the Federal Bureau of Investigation (“FBI”), which was the dedicated law enforcement agency in the USA dealing with mafia matters, as well as extortion. There was nothing to suggest that FBI would not assist the applicant, if approached with credible evidence. The Board concluded that state protection was available to the applicant. 28.Given its findings that there was no evidence of any current risk to the applicant and that state protection was available to the applicant even if he were still facing threats from Jose, the Board considered it not strictly necessary to make findings on the viability of internal relocation for the applicant. Nevertheless, the Board did so as a matter of caution. 29.The Board laid out its reasons in paragraphs 83 to 91 of the Board’s Decision for the conclusion that the applicant could relocate to other parts of the USA and stay there without undue hardship. The applicant had moved to Florida from 2014 to 2018 and remained there without any incident. The applicant had travelled in and out of the USA during that period without being troubled, which suggested that he was not scared to return to his country during that period. Why the applicant would be more scared of returning to the USA currently was not satisfactorily explained. The Board was of the view that California and Texas could be suitable states for the applicant to relocate, based on the available country of origin information (“COI”) and also because the applicant had not experienced any impediment in either state in the past. 30.The Board thus found that the applicant had failed to establish that there was a real chance he would be subjected to any of the proscribed forms of harm if he was to return to his country, and concluded that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the USM. 31.The finding of facts relating to a non-refoulement claim, including the assessment of evidence, COI 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. 32.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. 33.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 34.For reasons aforesaid, the Leave Application is dismissed. Dated the 20th day of May 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
Form CALL-1 [1] The non-refoulement principle under Article 33 of the 1951 Convention relating to Status of Refugees | ||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment