Case Document

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HCAL 829/2024

[2026] HKCFI 4885

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 829 OF 2024

BETWEEN

	Alam Mohammed Javed	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 or counsel in open court;

Order by Deputy High Court Judge Michael WONG:

1. On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board” and the name of the putative interested party be amended to “Director of Immigration”.

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 and filed on 24 May 2024, 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 25 April 2024 (“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/2024/HCAL000829_2024_files/the_Board's_Decision.pdf

2.The Board found that the applicant’s application for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board rejected the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 26 October 2023 and confirmed the same, which rejected his non-refoulement claim.

Amendments

3.The applicants named the Board and Immigration Department as both the putative respondents and the putative interested parties in Form 86. In fact, only the Board should be named as the putative respondent, and the Director should be named as the putative interested party.

4.Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board” and the name of the putative interested party is amended to “Director of Immigration”.

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 suffer serious harm, even death, at the hands of AS and his gangsters, as the applicant had failed, or refused, to continue to pay money to AS and his gangsters, as demanded by them.

Disposal on paper

7.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

8.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).

9.The applicant did not advance any ground for the intended judicial review in his Form 86, nor in his supporting affirmation dated 24 May 2024. In the said affirmation, the applicant only mentioned that he would like to reject and review the Board’s Decision as they disregarded his dangerous situation.

Discussion

10.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.

11.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).

12.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.

13.In assessing the applicant’s appeal/petition, the Board held an oral hearing on 7 March 2024. The applicant was present at the hearing and was thus given the opportunity to present his case to the Board in person.

14.The Board had laid out its analysis on the credibility of the applicant and its assessment of the past events and future risks of the applicant in paragraphs 69 to 77 of the Board’s Decision, and it is not necessary to repeat the same here.

15.In gist, the Board found that the applicant’s evidence lacked credibility and was unpersuasive. On the totality of the evidence, the Board was of the opinion that the applicant had, at best, exaggerated his evidence or, at worst, invented the evidence. The Board was not persuaded that AS was a high-ranking member of the Trinamool Congress party as the applicant claimed, or at all. Even if it were accepted that the applicant was assaulted on the two occasions as alleged, he did not suffer any serious injury, or any injury of the high level of seriousness, which would support a claim for non-refoulement protection.

16.Further, given the discrepancies on the face of the medical report submitted by the applicant, the Board was not persuaded that the medical report supported the applicant’s claim that his back was seriously injured in the second incident. Given the minimal weight which could be attached to the medical report, the Board was also not persuaded that the applicant suffered any serious injury to his back as claimed, or at all.

17.On the totality of evidence, the Board was not persuaded, even to the low standard applicable, that there was a real risk that the applicant would be liable to suffer serious harm, even death, at the hands of AS or his gangsters, if the applicant was removed to India.

18.Thus, the Board concluded that the applicant had not made out a case for non-refoulement on any of the available grounds under the USM.

19.Although the Board did not consider state protection and internal relocation, it was unnecessary to make findings on the availability of state protection as the Board found the applicant was not at a real risk of any of the proscribed forms of harm at the hands of AS or his gangsters in India.

20.As to internal relocation, it is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that he qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997). In other words, internal relocation only arises if the applicant has established a real risk of persecution in his home area (see Gardi v SSHD [2002] 1 WLR 2755).

21.As it is the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm in India, it is not necessary for the Board to consider internal relocation.

22.The finding of facts, including the assessment of evidence and risk of harm, was solely within the ambit of the Board in dealing with the applicant’s appeal/petition. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

23.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.

24.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

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

Dated the 26^th day of August 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 his 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: 26/08/2026 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: 26/08/2026 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative respondent’s ref. no.: USM 22392 Director of Immigration Putative interested party’s ref. no.: QA T/C 965/23 (Formerly RBCZ 5000895/23) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)