Case Document

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HCAL 748/2024

[2026] HKCFI 4755

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 748 OF 2024

BETWEEN

	Asad Shamim	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 (Ord 53 r 3)

Following:

consideration of the documents only; or

consideration of the documents and oral submissions by the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.The Applicant is a 50-year-old national of India who arrived in Hong Kong on 8 June 2023 as a visitor with permission to remain as such up to 22 June 2023 when he did not depart and instead overstayed, and was arrested by police on 10 September 2023. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim for protection on the basis that if he returned to India he would be harmed or killed by his friend’s creditor over his friend’s outstanding loan for being the loan’s guarantor. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Ekbalpore, Khidderpore, Kolkata, West Bengal, India. After leaving school he worked in the marketing and delivery industries and later as a quality checker in a leather factory, got married and raised a family with a daughter in his home district.

3.In 2020 he together with his friend Shahid lost their jobs in the leather factory, whereupon Shahid returned to his home in Bihar while the Applicant started to work as a fruit hawker in Kolkata to make his living.

4.In March 2023 Shahid came to Kolkata to visit the Applicant and requested that he acted as the guarantor of a loan which Shahid intended to borrow from some local money-lender in Kolkata for his mother’s medical expenses, and for which he would remit money from Bihar to the Applicant in Kolkata every month for the repayment of his loan by instalments, and to which the Applicant agreed.

5.However, soon after Shahid received the loan and returned to Bihar, he never remitted any money to the Applicant as promised and thereafter just disappeared without any news, and soon the money-lender sent men to threaten the Applicant for repayment of the loan as its guarantor, and when the Applicant was unable to do so, those men then beat him violently, and before they left they threatened to kill him next time if he still failed to repay his friend’s loan.

6.As a result, the Applicant became fearful for his life, and so on 7 June 2023 he departed India for Hong Kong and subsequently overstayed, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 25 October 2023 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.By a Notice of Decision dated 17 November 2023 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), 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”).

8.In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his friend’s creditor and followers upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of his friend’s creditor to seriously harm or kill him other than to press him to repay his friend’s debts as the loan guarantor, that in any event it was a private monetary dispute between the 3 of them 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”) shows that reasonable internal relocation alternatives are available in India with a large population of 1.3 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 Mumbai or Bengaluru where it would be difficult if not impossible for anyone to locate him.

9.On 28 November 2023 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended 2 oral hearings on 29 February 2024 and 18 April 2024 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 26 April 2024 his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.In its decision[1] the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from his friend’s creditor over his friend’s debts that caused him to leave his country to come to Hong Kong to seek protection, that even if his account of events prior to his departure of India were true that there was no reliable evidence of any real intention of his friend’s creditor to seriously harm or kill him other than to press him to repay his friend’s debts as the loan guarantor, and that in any event it was a private monetary dispute between the 3 of them only without any official involvement that state or police protection would be available to the Applicant upon his return to India if resorted to as well as reasonable internal relocation alternatives for him to move safely to other parts of the country away from his home district without any risk of being located by anyone that his claim for non-refoulement protection failed on all applicable grounds.

11.On 13 May 2024 the Applicant filed 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 his supporting affirmation of the same date to which he just attached a copy of the decision but without putting forth any proper ground for his intended challenge. As such, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its 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.

12.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.

13.In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in his claim even if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other parts of India, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

14.Having considered the decisions of both 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 consideration and assessment of the Applicant’s claim.

15.Moreover, the Applicant has recently in writing requested to withdraw his application as it is now safe for him to return to his home country.

16.In the premises, 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, and in view of his latest confirmation that it is safe for him to return to his home country, I accordingly dismiss his leave application.

Dated the 2^nd day of September 2026

(Joyce Ooi)
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 to the Applicant on 2 September 2026 Asad Shamim Applicant’s ref. no.: Nil.		Sent 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 2 September 2026 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 22531 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1182/23 (Formerly RBCZ 5001145/23) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)