Mohammad Shahid v. Torture Claims Appeal Board
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HCAL 2801/2025 [2026] HKCFI 5035 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2801 OF 2025 BETWEEN
Application for leave to apply for judicial review NOTIFICATION of the Judge’s decision (Order 53, rule 3) Following:
Order by Deputy High Court Judge Michael WONG:
Observations for the applicant: The Leave Application 1.By way of Form 86 dated 15 December 2025 and filed on 18 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 28 November 2025 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:- 2.The Board found that the applicant’s claim for non-refoulement protection in Hong Kong failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board dismissed the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 2 October 2025 (“the Director’s Decision”) and affirmed the same, which rejected his non-refoulement claim. Amendment 3.The applicant named “Torture Claims Appeal Board/ Non-refoulement Claims Petition Office” as the putative respondent in Form 86, when only the Board should be so named. 4.The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board and should not be named as a putative respondent at all. 5.Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board”. The applicant’s case 6.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. 7.In sum, the applicant claimed for non-refoulement protection because if refouled to India, he would be ill-treated or killed by a loan shark named Dheeraj Dhanuk and his underlings (collectively “the Enemies”) due to his loan default. Oral hearing 8.The applicant requested for an oral hearing of the Leave Application and his case was heard on 27 August 2026. 9.At the hearing, the applicant mentioned that he was illiterate, he did not know the purpose of the hearing, and he did not make any application. He said that he was merely asked by an interpreter to sign on some documents. 10.Nevertheless, after his Form 86 was shown and interpreted to the applicant, the applicant confirmed that he would like to proceed with the Leave Application. He said that he had danger in his country, and his legs, arms and head were heavily assaulted. 11.With regards to the document annexed to his Form 86 with the title “Grounds on which Relief is Sought”, the applicant had no idea what were written there as he was unable to read or write. He only added that if the document was attached to his Form 86, it should be right and he would rely on the grounds stated therein for his intended judicial review. 12.When this court asked the applicant to elaborate on the said grounds, he merely replied that he had taken out a loan and had lost the money, his life was threatened, and his enemies broke his leg, hit his arm and beat him on his back. He therefore had to flee his country to come to Hong Kong to save his life. 13.The applicant added that once the situation was solved, he would be able to go back to his country. Meanwhile, he would like to stay in Hong Kong. Grounds for judicial review 14.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). 15.In the document titled “Grounds on which Relief is Sought”, which was annexed to the applicant’s Form 86, the applicant mentioned 8 grounds with the following headings:-
16.As aforesaid, the applicant did not elaborate on any of the grounds stated in the said document at the oral hearing, and only reiterated the basis of his non-refoulement claim. Discussion 17.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, the applicant’s reiteration at the oral hearing before this court of his danger arising from his failure to repay a loan cannot help him at all. 18.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). 19.In raising the grounds for judicial review as set out in the document with the title “Grounds on which Relief is Sought”, it seems that the applicant was asking this court to scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality as aforesaid. This court will therefore do so as discussed below. 20.In Ground (1), the applicant mentioned that the Board failed to properly consider material evidence presented by the applicant, including consistent statements regarding threats, past harm, and the refusal of police assistance. He also mentioned that relevant country information concerning police corruption and systemic failure to protect victims of private-actor violence was selectively referenced but not genuinely assessed. 21.Contrary to the applicant’s assertion, this court finds that the Board had carefully examined all aspects of the applicant’s claim, including the taking out of the loan, his default in repayment, the alleged assault by the underlings of the loan shark, the harassment on the applicant’s wife and the refusal of the police to render assistance to her. 22.Moreover, despite the Board’s finding that the applicant was not a truthful or credible witness, the Board explicitly stated in paragraph 71 of the Board’s Decision that even if it accepted the applicant’s evidence, the Board would still find that the applicant’s claim/appeal failed. 23.The Board had given full reasons for such a finding in paragraphs 72 to 91 of the Board’s Decision, where it discussed the applicant’s claimed risk of harm or ill-treatment (at §72 – §78), the availability of state protection to the applicant (at §79 – §84) and the viability of internal relocation for the applicant (at §85 – §91). 24.Significantly, this court notes that the Board had discussed the applicant’s claim that his wife was denied assistance by the local police in paragraph 79 of the Board’s Decision, and had gone through very extensive country of origin information (“COI”) in paragraphs 80 to 84 of the Board’s Decision to address the applicant’s concern about whether police assistance would be available and the general problems of corruption and police ineffectiveness in India. 25.This court finds that the Board’s assessment of state protection was comprehensive and had indeed taken the applicant’s personal circumstances into consideration. 26.Thus, the applicant cannot claim that the Board had failed to consider material evidence and selectively referred to COI. The Board’s assessment in these regards cannot be flawed too. Ground (1) is therefore not arguable. 27.In Ground (2), the applicant complained that the Board’s adverse credibility findings were irrational, speculative and unsupported by evidence, and that the Board relied on immaterial inconsistencies, made assumptions about how a victim “should” behave, and required corroboration inconsistent with the low threshold for non-refoulement claims. 28.This court notes that the Board had given fully justified reasons in paragraphs 58 to 70 of the Board’s Decision for its finding that the applicant was not a truthful or credible witness, and it is not necessary to repeat the same here. This court finds nothing wrong or unreasonable with the reasoning given by the Board. 29.Moreover, as aforesaid, even if the applicant’s evidence were accepted, the Board did give further reasons in paragraphs 72 to 91 of the Board’s Decision as to why it would still find the applicant’s claim or appeal failed on all the applicable grounds under the USM. Thus, the applicant’s claim for non-refoulement protection was not rejected on credibility issues alone. Ground (2) is doomed to fail. 30.In Ground (3), the applicant accused the Board for applying an unduly high standard of proof, failed to properly apply the test of whether there was a real and substantial risk of harm, disregarded credible elements of the applicant’s account and failed to apply the correct legal threshold under Hong Kong and international jurisprudence. 31.As can be seen from paragraphs 48 to 57 of the Board’s Decision, the Board was clearly aware of the law, legal principles and standard of proof to be applied in the assessment of non-refoulement claims. As mentioned, despite the Board’s findings on the applicant’s credibility, it did explain in details the reasons why, even if the applicant’s evidence was accepted, it would still find the applicant’s claim and appeal failed on all the applicable grounds under the USM. The applicant’s mere accusation that the Board failed to apply the correct legal threshold in the assessment of his non-refoulement claim cannot stand. Thus, Ground (3) is not arguable. 32.In Ground (4), the applicant accused the Board for failing to assess state protection properly. The applicant alleged that the Board’s finding that adequate state protection was available in India was irrational and unsupported by evidence, the Board’s Decision disregarded his personal experience of police refusal and the country information demonstrating corruption, limited police training, and systemic failures in responding to private-actor violence. 33.As discussed above, in its assessment of state protection for the applicant, the Board had considered the applicant’s claim that his wife was denied assistance by the local police, and examined extensive COI including those supporting the applicant’s claims of police corruption and ineffectiveness. This court finds that the Board’s assessment of state protection was sufficient and had indeed taken the applicant’s personal circumstances and his wife’s experience into account. Thus, Ground (4) has no merit at all. 34.In Ground (5), the applicant asserted that the Board concluded that he could safely relocate within India without undertaking a proper assessment of his personal circumstances, the reach of the perpetrators, or the recognised nationwide issues relating to police corruption and lack of protection. The applicant considered that the conclusion was unreasonable and not based on evidence. 35.As said, this court notes that the Board had given full reasons in paragraphs 85 to 91 of the Board’s Decision for its finding that it would not be unduly harsh for the applicant to relocate to other areas in India to sustain a normal life and avoid the asserted risk imposed by his Enemies. In its reasoning, the Board had given consideration of the reach of the loan shark, the possibility of the loan shark locating the applicant in highly populated areas and the applicant’s profile, including his many years of work experience. This court finds nothing wrong or unreasonable in the Board’s assessment in this regard. Ground (5) is simply not arguable. 36.In Ground (6), the applicant challenged that the Board had failed to apply the legal principle that torture or ill-treatment might arise from private actors where the state was unable or unwilling to provide protection, and that the Board’s Decision did not address whether the Indian authorities would acquiesce in the harm feared, despite evidence of police refusal and systemic failures. 37.In this regard, this court finds that the Board had explicitly discussed the issue of state acquiescence in paragraph 83 of the Board’s Decision. This court agrees with the Board’s finding that, in accordance with a local case law, a government genuinely striving to deal with social problems could not be said to be acquiescing in the impermissible acts, and that the fact that its effort to address those social problems were not wholly effective did not, by that fact alone, mean that the Indian government was de facto permitting such problems to take place so as to facilitate and enable those perpetrating those acts to do so with impunity. The applicant’s accusation in Ground (6) cannot stand. 38.In Ground (7), the applicant asserted that several of the Board’s findings including assumptions regarding the perpetrator’s motivations, the applicant’s conduct, and the likelihood of future harm were not supported by evidence and were irrational. The applicant believed that the cumulative effect rendered the Board’s Decision unreasonable in the Wednesbury sense. 39.As discussed above, the Board found that, even if the applicant’s evidence was accepted, the applicant’s claim for non-refoulement claim would still fail. In making this conclusion, the Board had taken into account the applicant’s own evidence that he was still living and working in his home town for about 3 years following his default on repayment of the loan, and he and his family remained unharmed. The Board considered that the applicant’s decision to remain in his hometown for three years post-default without incident undermined his claim of significant danger. The applicant’s ability to live, work, and relocate locally without harm demonstrated that any alleged threat was either ineffective or non-existent. 40.This court finds that the Board’s conclusion in this aspect was supported by evidence and based on the applicant’s own account, and was not unreasonable or irrational as asserted by the applicant. Thus, Ground (7) has no substance. 41.Finally, the applicant stated in Ground (8) that the Board failed to give adequate reasons explaining why key evidence was rejected, how adverse findings were reached, or how the legal tests were applied. 42.The applicant’s accusations in Ground (8) were simply untrue. As discussed above, the Board had examined the applicant’s case, assessed the applicant’s credibility and, despite its findings that the applicant was not a truthful and credible witness, still assessed his claimed risk based on his account of story. 43.Moreover, the Board had also considered the availability of state protection to the applicant if he needed assistance upon refoulement, and the viability of internal relocation for the applicant to avoid any perceived harm from the Enemies. 44.This court finds that the Board had given full and justified reasons for rejecting the applicant’s claim for non-refoulement protection and his appeal/petition against the Director’s Decision. 45.Thus, none of the grounds that were contained in the document with the title “Grounds on which Relief is Sought” which was annexed to the applicant’s Form 86 could establish any valid ground to challenge the Board’s Decision. 46.Apart from the discussion in relation to the grounds raised by the applicant as aforesaid, this court also finds that the Board had duly analysed the applicant’s case with care, and had given full, detailed and rational reasons in rejecting the applicant’s claim for non-refoulement protection. 47.The finding of facts, including assessment of evidence, COI 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. 48.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. 49.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 50.For reasons aforesaid, the Leave Application is dismissed. Dated the 2nd day of September 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
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Cases cited in this judgment