Mottan Rohit v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
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HCAL 86/2026 [2026] HKCFI 4598 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 86 of 2026 BETWEEN
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 Levy:
Observations for the Applicant: Introduction 1.By a “Notice of application to apply for leave for judicial review” in the prescribed Form 86 filed on 8 January 2026, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 18 December 2025 (“Board’s Decision”) dismissing the applicant's appeal against the Director of Immigration (“Director”) dated 30 October 2025 rejecting the applicant's non-refoulement claim on all applicable grounds[1]. The Board’s Decision can be viewed at the following hyperlink: - 2.In the Form 86, the applicant provided an address as the proposed interested party. As the Director should have been the proper putative interested party, the Form 86 shall be amended accordingly on the court’s own motion. 3.The basis of the applicant’s claim was that, if refouled to India, he would be harmed or killed by Rajat’s family and friends when Rajat tried to attack the applicant to stop him from applying to be a candidate in local election. In a scuffle between Rajat and the applicant, Rajat was in a coma after the applicant struck him on the head. The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them. Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision. 4.As the applicant has not requested for a hearing in his Form 86, the court will determine the Leave Application without a hearing: see O.53, r.3 (3) of the Rules of the High Court. Discussion 5.A leave application operates as a ‘filtering’ process. Hence, there is no requirement or expectation to give elaborate reasons for my decision. It is therefore sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced. 6.In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[2], and further to make full and frank disclosure of all material facts to be verified by an affidavit. The applicant’s Form 86 and the supporting affirmation provided no such grounds. 7.As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality.[3] In the present case, whilst the Board accepted the applicant’s account of past events that he had personal enmity with Rajat, the Board however found that the applicant would not face any risk of harm if refouled. This is because the Board found that his Enemies had no intention in seriously harming the applicant, and further that the past ill-treatment failed to reach the requisite level of severity. The Board further found that state protection and internal relocation would be reasonably available. These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors. 8.Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness. The applicant advanced no grounds at all in support of the Leave Application. The applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision. The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[4]. Orders 9.The Form 86 be amended on the court’s own motion. 10.The applicant’s application for leave to apply for judicial review be dismissed. Dated the 21st day of August 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 applicable grounds are risk of torture under Part VIIC of the Immigration Ordinance (“torture risk”) , BOR 2 risk (this refers to the risk of violation of the right to life under Art. 2 of s.8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”), BOR 3 risk (this refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Art 3 of HKBOR) and persecution risk (This refers to the risk of persecution with reference to the non-refoulement principle under Art. 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol) under the USM (This refers to the Hong Kong Government’s Unified Screening Mechanism (“USM”) implemented since 3 March 2014 to process claims for non-refoulement protection. For a detailed description of the USM, see the judgment of Zervos J in HKSAR v Vu Thang Duong & Anor [2015] 3 HKC 293. [2] Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015, 22 December 2016 at [142]. [3] 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. [4] Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 |
Cases cited in this judgment