Case Document

100%

HCAL 2782/2025

[2026] HKCFI 4259

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2782 OF 2025

BETWEEN
	Manoj Kumar	Applicant
	and
	Torture Claims Appeal Board	Putative
		Respondent
	and
	Director of Immigration	Putative
		Interested Party

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;

Order by Deputy High Court Judge Michael WONG:

1. On this court’s own motion, “Director of Immigration” be added as the putative interested party.

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 15 December 2025 and filed on 16 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 2 December 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/HCAL002782_2025_files/the_Board's_Decision.pdf

2.The Board found that the applicant had not made out a case for non-refoulement protection on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board dismissed the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 9 October 2025 and confirmed the same, which rejected his non-refoulement claim.

Amendment

3.The applicant did not name any putative interested party in Form 86, when the Director should be so named.

4.Thus, this court makes an order on its own motion to add “Director of Immigration” as the putative interested party.

The applicant’s case

5.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.

6.In sum, the applicant claimed for non-refoulement protection because if refouled to India, he would face the risk of harm or even death at the hands of three neighbouring brothers named RAM KUMAR, SANJAY and CHHOTU (“the Neighbouring Brothers”) due to a land dispute.

Oral hearing

7.The applicant requested for an oral hearing of the Leave Application and his case was heard on 14 July 2026.

8.The applicant confirmed that he would rely on the grounds stated in his supporting affirmation dated 15 December 2025 for his intended judicial review. When this court asked the applicant to elaborate on the said grounds, he merely replied that his problem had not been resolved and therefore he could not go back to his country.

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.In paragraphs 5(a) to (c) of the applicant’s said affirmation, the applicant mentioned that:-

(1)  He was a genuine claimant who faced all these dangerous problems, harassment and torture in his country;

(2)  The Director reached the wrong decision in assessing his claim; and

(3)  If he did not run away, he certainly would have been killed by his enemies. His problems were getting more and more life-threatening day after day.

11.As aforesaid, the applicant did not elaborate on any of the grounds stated in the said affirmation at the oral hearing, and only mentioned that his problem had not been resolved, and therefore he could not go back to his country.

Discussion

12.First of all, the applicant’s danger in his own country had been duly assessed but rejected by the Board. If he intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review. Thus, Grounds (1) and (3) as summarised above cannot be valid grounds to challenge the Board’s Decision.

13.Ground (2) as summarised above was advanced against the Director only. As the Leave Application concerns only the Board’s Decision, which had in fact superseded the Director’s Decision (see Re Moshsin Ali [2018] HKCA 549), this paragraph can simply be ignored.

14.Thus, none of the grounds that were contained in the applicant’s affirmation dated 15 December 2025 could establish any valid ground to challenge the Board’s Decision.

15.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).

16.Thus, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any valid ground being advanced by the applicant for the intended judicial review.

17.In assessing the appeal/petition by the applicant, the Board held an oral hearing on 25 November 2025 and the applicant was present. Thus, the applicant was given the opportunity to present his case to the Board in person.

18.As can be seen from the Board’s Decision, the Board found that the applicant was not a credible witness. The Board did not accept his account that he had been subjected to sustained threats and violence by the Neighbouring Brothers, and that he faced any real risk of serious harm at their hands if he returned to India.

19.The Board had laid out its analysis of the material aspects of the applicant’s claims in paragraphs 64 to 88 of the Board’s Decision, and it is not necessary to repeat the same here.

20.In gist, the Board found that the applicant’s account regarding: (1) the relationship between his own family and the family of the Neighbouring Brothers; (2) the moving away of the applicant’s mother and wife; (3) his lack of contact with his mother and wife and the alleged need to avoid tracing; and (4) his purpose of travel to Hong Kong were all deeply unreliable. The Board did not accept that his departure from India was prompted by a genuine and well-founded fear for his life. Rather, the Board found that his account had been materially embellished and, in significant respects, fabricated.

21.Moreover, the Board had explicitly stated that even if the applicant’s information/evidence were to be accepted, it would still dismiss his appeal/petition. The Board found that the alleged assault in April 2023, if it occurred, was only an isolated and exceptional event against a background of otherwise verbal intimidation. The Neighbouring Brothers had not embarked on a sustained campaign of serious possession of the land in dispute. The Board did not consider that their past conduct, even as alleged, demonstrated a genuine and continuing intention either to kill the applicant or to subject him to serious harm.

22.In any event, the applicant’s dispute with the Neighbouring Brothers was only a private dispute that had nothing to do with the Indian government.

23.The Board also found that there were alternative places of safety in India for the applicant where he could avoid the alleged risks of violence or threats from the Neighbouring Brothers.

24.Further, the Board was satisfied that meaningful state protection would be available to the applicant if needed.

25.Thus, the Board concluded that the applicant did not face a real risk of being subjected to any of the proscribed forms of harm under the USM if he was refouled to India.

26.The finding of facts, including assessment of evidence 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.

27.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.

28.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

29.For reasons aforesaid, the Leave Application is dismissed.

Dated the 29^th day of July 2026

( Gladys LEE )
for Registrar, High Court

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 the applicant’s solicitors must:
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)).		Sent/Handed to the applicant/the applicant’s solicitors on: 29/07/2026 Applicant’s ref. no: Nil		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: 29/07/2026 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative respondent’s ref. no.: USM 27389 Director of Immigration Putative interested party’s ref. no.: QA T/C 1757/25 (Formerly RBCZ 5001684/25) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)