Naushad Mohammed v. Torture Claims Appeal Board

HCAL 205/2026

[2026] HKCFI 3764

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 205 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 Bruno Chan:

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.The Applicant is a 50-year-old national of India who had previously twice entered Hong Kong under false identities and for which he was subsequently convicted and sent to prison before being repatriated to India, but on 4 June 2010 he again entered Hong Kong under his present identity as a visitor with permission to remain as such up to 19 July 2010 when he did not depart and instead overstayed, and was arrested by police some 9 months later on 17 April 2011, for which he was subsequently convicted and sent to prison for another term of 12 months, during which he raised a torture claim to the Immigration Department on the basis that if he returned to India he would be harmed or killed by 3 former friends over their personal disputes in his home district, and after his torture claim was rejected, he then sought non-refoulement protection on the same basis. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Kolkata, West Bengal, India. After leaving school he married his wife and raised a family with a daughter, and ran a successful trading business in his home district.

3.Three of his friends in his home district who also ran similar business became jealous of his success which eventually led to some serious disputes between them, and after one confrontation between them during which his friends fired several gun shots at him but missed that the Applicant was able to make his escape unharmed.  

4.Thereafter as he feared of further attacks from his friends, the Applicant fled from his home district to Phoolbagan, and on 4 June 2010 he departed India for Hong Kong and subsequently overstayed, and upon his arrest by the police he then raised his torture claim, for which he completed a Torture Claim Form (“TCF”) with legal representation from the Duty Lawyer Service (“DLS”) but failed to attend any scheduled screening interviews before an immigration officer due to alleged medical reasons without any supporting evidence, and by a Notice of Decision dated 23 August 2012 his torture claim was rejected by the Director of Immigration (“Director”) upon finding his claim unreliable and incredible, and that in any event even if true that his problem with his 3 friends in his home district was a private dispute between them without any state or official involvement that their alleged threats against him were found not to amount to torture under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“The Convention”).   

5.The Applicant did not then lodge any appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and instead he sought non-refoulement protection to the Director on the same basis, and for which he completed a Supplementary Claim Form (“SCF”) on 11 October 2016 in which he essentially repeated his claim as before and attended screening interview before the Immigration Department with the same legal representation from DLS.             

6.By a Notice of Decision dated 28 November 2016, the Director also rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

7.In his decision, the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real and substantial risk of him being harmed or killed by his 3 friends in his home district upon his return to India due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill him or that they would still have any adverse interest in him after all these years since he left the country in 2010, that in any event it was a private and personal dispute between him and his 3 friends only without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in India with a large population of 1.2 billion people spread across a vast territory of more than 3.2 million square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from his home district in large cities such as Delhi where it would be difficult if not impossible for anyone to locate him.

8.His subsequent appeal to the Board against this decision of the Director was dismissed by the Board on 13 July 2018 after he failed to attend his appeal hearing without any explanation and upon finding no merits in his appeal or his non-refoulement claim.

9.The Applicant’s seriously late application for leave to apply for judicial review of the Board’s decision was also refused by this Court on 30 September 2022 upon finding no good reason for his serious delay of more than 7 months with his application, that none of his proposed grounds for his intended challenge reasonably arguable, that there was no error of law or procedural unfairness in his process before the Board or in its decision, and that there was no prospect of success in his intended application (HCAL 1399/2019 [2022] HKCFI 3006).

10.The Applicant’s appeal against the Court’s decision was then dismissed by the Court of Appeal on 17 May 2023 (CACV 410/2022 [2023] HKCA 657), while his subsequent Notice of Motion for leave to appeal to the Court of Final Appeal against the Court of Appeal’s decision was also refused on 20 September 2023 (CACV 410/2022 [2023] HKCA 1065).

11.More than 2 years later on 6 November 2025, the Applicant lodged an appeal to the Board against the very first decision of the Director which rejected his torture claim some 13 years ago, and as his notice of appeal was clearly filed outside the 14-day period after notice of the decision was given to him on the same day of 23 August 2012 under Section 37ZS (1) of the Immigration Ordinance, and in pursuance of Section 37ZT (2) of the Ordinance as amended on 1 August 2021, the Board proceeded to decide, as a preliminary decision without a hearing, whether to allow the late filing of the Applicant’s notice of appeal by taking account only of the statement of reasons stated in the Applicant’s application for his late filing and the evidence if any relied on in support of his reasons.

12.By a Decision[1], dated 13 November 2025, the Board refused to allow the late filing of the Applicant’s notice of appeal upon finding that it was late by some 13 years and 3 months which were extremely substantial and inordinate, that his stated reasons of being uneducated without any knowledge of the law in Hong Kong and of having been using drugs and suffering from mental illness were not acceptable or credible as either irrelevant or just bare assertions unsupported by any evidence, and that given the background and history of his various proceedings for his non-refoulement claim which he had gone through over the past 13 years that it is not accepted that he had exercised all due diligence to file his notice of appeal within the required period or that his failure to do so was due to any circumstances beyond his control.     

13.On 19 January 2026, the Applicant lodged his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or in his supporting affirmation in which he exhibited a 23 page submissions consisting mainly a regurgitation of his claim as before and various applicable law and principles as well as some bare assertions that the Board’s decision was unreasonable or irrational or without sufficient reasons to dismiss his appeal but without any relevant details or particulars or elaboration as to how it was so. As such, and in the absence of any error of law or irrationality or procedural unfairness in the decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge of the Board’s decision.     

14.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

15.In the Applicant’s case, the Board refused his seriously late filing of his appeal against the Director’s decision in rejecting his torture claim for the thorough and detailed analysis and reasoning set out in its decision when on the factual basis of even his own claim that it clearly did not amount to torture under the Convention, and given the fact that his subsequent non-refoulement claim based on the same facts as submitted by him had also been rejected by the Board and his subsequent legal challenges had all been refuted at every level of the Courts, I am unable to find any reasonably arguable basis to challenge the finding of the Board or any merits in his intended application.

16.In the premises, and having considered the decisions of the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their respective consideration and assessment of the Applicant’s torture claim by the Director and the refusal of his seriously late filing of his notice of appeal by the Board.

17.As I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss his application.

Dated the 2^nd day of July 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