Hossain Sajid v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
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HCAL 2721/2025 [2026] HKCFI 5036 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2721 of 2025 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 To: Leave to apply for Judicial Review be refused. Observations for the Applicant: Introduction 1.This is the Applicant’s application by Form 86 filed on 9 December 2025 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 27 November 2025 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 26 September 2025 (the “Notice”), refusing his application for non-refoulement protection. 2.The Applicant is an Indian national. He entered Hong Kong on 8 April 2023 as a visitor and overstayed since 23 April 2023. He was arrested on 8 June 2023 and subsequently sentenced to two month’s imprisonment for overstaying. He raised a non-refoulement claim by written signification on 19 and 21 July 2025. 3.In due course, his claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. His application was rejected by the Director’s Notice. His appeal was dismissed by the Board’s Decision. He now applies for leave to apply for judicial review of that Decision. The Applicant’s case 4.The factual background leading to the present application, the basis of the Applicant’s claim, the arguments he advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision. These will not be repeated here. The hyperlink to the Board’s Decision is included below[5] for reference. In gist, the Applicant’s case is as follows. He and his friend (the “Friend”) used to operate a business delivering animals for a butcher. They undertook to deliver a huge cow to a client (the “Client”) for sacrifice in the Eid al-Adha festival. His Client is a member of the All India Trinamool Congress (“AITC”) which is the ruling party in West Bengal State and has connection with the chairperson of the AITC and the Chief Minister of West Bengal State. The cow was too big to be transported on lorry. They loaded it on a pushcart and planned to push it for six to seven hours from Dankuni City to Metiabruz town. Unfortunately, during the course of the journey, both the cow and his Friend were killed in a traffic accident. His Client demanded compensation of 900,000 Indian Rupees for the loss of the cow. The Applicant could not pay. In early November 2022, ten to fifteen AITC members came to his home and threatened him with death. They assaulted him with knives and wooden sticks. He did not report the attack to the police because he thought the police would not go against a politically influential person. He moved to live in the mosque of various places to avoid his Client. He does not believe internal relocation is a viable option because his Client could locate him through his extensive AITC network. His Friend’s family were also looking for him. He claims, if returned to India, he will be harmed or killed by the Client for being unable to pay compensation and by his Friend’s family which held him responsible for the death of his Friend. The finding of the Board 5.The Board accepted the Applicant’s evidence and assessed his claim on the basis of his evidence, the country of origin information (the “COI”) and some inferences drawn therefrom. It noted that although the Applicant was unable to pay, on his request, his Client gave him time to pay. Despite he was assaulted by his Client’s subordinates and required hospitalisation for 12 days, his mobility was not substantially affected. No physical harm had been inflicted on his family members. It noted that his Friend’s family only threatened his wife to disclose his whereabouts, but had never harmed his family members or threatened to kill him if they found him. The Board therefore found the ill-treatment inflicted on the Applicant did not attain a minimum level of severity. It was not satisfied that the Applicant had proved any substantial ground to believe that there will be a foreseeable and real risk of harm on his return to India. It considered his Client’s threat were merely gestures to pressure the Applicant to pay compensation and his Friend’s family were angry with the Applicant and wanted to find him, but there is nothing to suggest that they intended to inflict severe harm or fatal attack on him. Even if his Client and his Friend’s family did have a real intention to ill-treat him, the Board could find no substantial ground to believe that they have the ability and resources to track the Applicant down everywhere in India. 6.The Board accepted that the Indian government has shortcomings and limitations in addressing and improving the competence of the police and combating corruption. However, on the basis of the COI, it found no indication that the government is not genuine in addressing these problems and in improving the situation. It was satisfied that reasonable state protection would be available to the Applicant on his return to India and did not accept that he will be denied of such protection by the government. It also found on the basis of the COI that being an able‑bodied person of his age, education and working experience, he can relocate to areas in India other than Khidderpore, such as Delhi or Mumbai. 7.Applying the law applicable to the non-refoulement protection to the above finding of fact, the Board also came to the conclusion that the Applicant is not entitled to protection under of the applicable grounds under the USM. Hence, it dismissed the Applicant’s appeal. Legal principles applicable to judicial review 8.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[6]. Grounds for judicial review 9.At the hearing, after the above principles had been explained to the Applicant, he confirmed he had no complaints about errors of law, procedural unfairness and irrationality in the Decision. However, in his Form 86, he advanced seven grounds of application. He said these grounds were prepared by his friend while he was in custody. He said he understood what was written in the grounds and could provide particulars, if required. However, when particulars were asked of him, he said he did not understand the grounds because they were written by his friend. Even after the grounds were explained to him, he just could not provide any particulars. These grounds are as follows. Ground (1): Error of law – The Board applied the wrong legal test for assessing “real risk” by requiring proof of certainty and corroboration instead of applying the low standard of substantial grounds for believing that a real risk exists. 10.Having rigorously scrutinised the Decision, the Court could find no support for this ground. To start with, the Board accepted the evidence of the Applicant. On the basis of his evidence, it drew inferences. It gave reasons for drawing the inferences. It expressly applied the ‘substantial grounds to believe test’ in coming to its finding that there was no foreseeable and real risk of harm to the Applicant on his return to India and that his Client and his Friend’s family do not have the ability and resources to track the Applicant down everywhere in India: see paragraph 5 above. Ground (2) – Failure to consider material evidence; Ground (3) – Irrational / Unreasonable findings: The Board’s conclusion is inconsistent with its accepted fact; and Ground (4) – Inadequate reasons to explain why the accepted violence and threats did not amount to a real risk of future harm 11.These three grounds may be conveniently considered together. The Board accepted the Applicant’s evidence. As the Applicant asserted, the Board accepted that he had been assaulted, that his family had been threatened, that his Client is a member of the AITC which is the ruling party in West Bengal State, that his Client is connected with the chairperson of the AITC and the Chief Minister of West Bengal State. 12.When an assailant delivers a blow to a victim, he may do so with a range of possible intentions: to kill, to seriously harm, to cause moderate harm, to inflict minor injuries. He may do so for the purpose of achieving certain ends, such as to kill, to cause fear, to enforce a debt. To kill and to seriously harm is not the only irresistible intention or purpose. What his intention or purpose are have to be determined on the evidence of the surrounding circumstances including the words spoken by the assailant, the extent of the injury, the frequency and gravity of the assault, etc. The facts relied on by the Applicant had been mentioned by the Board in its Decision. Those facts had all been considered by the Board. But, the Applicant had not mentioned other facts considered by the Board, such as the frequency and gravity of the injury. The Board found the Applicant had been assaulted only once, the injuries were not serious and did not attain the minimum level of severity. Though not so mentioned by the Board, it is obvious that the Applicant was outnumbered. It was on the basis of all these factors that the Board came to the conclusion that the Client’s intention was to give pressure on the Applicant to pay compensation but had no intention to take his life. All these are questions of fact for the decision-maker, ie the Board. The Board had mentioned all these facts in its Decision. It had obviously considered all of them. It gave reasons for its finding. The weight to be given to each piece of evidence is also a finding of fact solely for the Board. On the evidence, it was open to the Board to make the finding of fact as it did. Its finding is not inconsistent with the facts accepted by the Board. There is no substance in these two grounds of application. These findings are findings of fact, solely for the Board, which the Court may not intervene, save for errors of law, procedural unfairness or irrationality in the Decision. This Court could find no such vitiating elements in these findings of the Board. 13.As for the Client’s membership in the AITC, his connection with the chairperson of the AITC and the Chief Minister of West Bengal State, these facts are no evidence that the Client, the chairperson and the Chief Minister had abused their position and exercised their influence against the Applicant. These facts, even taking into account systemic corruption, are not sufficient to raise such inference. Ground (5) – Incorrect approach to state protection – The Board wrongly assumed the authorities in India would protect the Applicant without considering the Applicant’s past experience of police inaction, the alleged political connection of the Client and evidence of systemic corruption 14.Having rigorously scrutinised the Decision, the Court is satisfied that the Board had given detailed consideration to the COI and the evidence before reaching its conclusion that reasonable state protection would be available to the Applicant on his return to India and that he would not be denied of such protection: see paragraphs 71 to 81 of the decision. It was alive to police incompetence and systemic corruption, but was satisfied on the basis of objective COI that the Indian government had taken action to combat violence, crime, corruption and improve the protection of the rights of her citizens and that avenues for seeking redress against police corruption and misconduct are available. 15.On the facts of this case, it was the Applicant’s choice not to report the threats from his Client to the police. His past experience is wholly irrelevant. There are avenues for seeking redress against police corruption and misconduct. Besides, his past experience of police inaction was related to a religious issue that Hindu police took no action against Hindu citizens taking away his cows to be used for religious sacrifice. That has no bearing to the facts of his case. Ground (6) – Incorrect assessment of internal relocation: the Board failed to consider whether relocation would be reasonable for the Applicant, given his limited means and the fact that his Client had traced him to various locations 16.The Board was alive to the evidence that the Applicant had sight of AITC members when he was staying in the Shrine of Mu’in al-Din Chishti, but found there was no evidence to suggest that the AITC members had discovered the Applicant, ie they just happened to be there: see paragraph 67 of the Decision. As for his evidence that his father-in-law told him that AITC members were looking for him in Sirsha Town, he was never confronted by the AITC members. They just looked for him there but failed to find him. There is also evidence that the Applicant had not been located by his Client in Delhi: see paragraph 67 of the Decision. On this evidence, the Board came to a wholly different conclusion that his Client is unable to find the precise whereabouts to locate the Applicant: see paragraph 67 of the Decision. That is a finding of fact solely for the Board. On the evidence, it was open to the Board to make that finding of fact. 17.The Board did consider the issue of internal relocation. It considered various COI in paragraphs 82 to 88 of its decision. It found in view of the geographical size and population size of India, it would be very difficult for his Client to locate him, particularly in populous cities such as Delhi and Mumbai: see paragraphs 85 to 87 of the Decision. Indeed, he never encountered his Client’s subordinates during his stay in Delhi. The Board also found being an able-bodied adult with his education and work experience, he could safely relocate to areas other than Khidderpore Town. It also named options such as Delhi and Mumbai. There is no substance in this ground. Ground (7) – The Board considered each factor of the risk separately and did not consider the combined impact of the past assault, threats, influence of the persecutor and failed relocations 18.The Applicant was unable to give any particulars, evidence or submissions, in support of this ground. Nor could he submit how these individual factors or risk events could give rise to any cumulative effect sufficient to affect the Board’s finding. Having rigorously scrutinised the Decision, this Court is satisfied that the Board had taken into consideration all these factors or risk events before reaching its finding that there is no substantial risk or substantial basis of fear that the Applicant would be subjected to any serious harm or ill-treatment by his Client and his Friend’s family upon his return to India. The Applicant’s evidence was that after experiencing all the assault, threats and sight of AITC members in various locations, he fled to Delhi. There, he obtained his passport from his wife and then flew to Hong Kong. Thus, it was his evidence that he flew as a result of the cumulative effect of all these events. The cumulative effect was to put the Applicant into fear. Hence, he flew to Hong Kong. The Board must have haven accepted and taken into account all the event and their cumulative effect when assessing the risk. However, the fear was subjective. It could not make good the absence based on objective evidence of intention on the part of his persecutors to kill the Applicant or to elevate the minor injuries actually suffered by him to a minimum level of severity as to entitle him to protection. Also, the cumulative effect could not overturn the Board’s finding on the basis of objective COI that state protection and internal relocation options could further negate the risk. There is no substance in this ground. Conclusion 19.Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board accepted the Applicant’s evidence and assessed his claim on the basis of the case as he asserted. It was on that basis that the Board found there is no substantial risk or no substantial basis of fear that the Applicant would be subjected to any serious harm or ill-treatment by his Client and his Friend’s family upon his return to India. It found reasonable state protection would be available to him on his return to India and that he would not be denied of such protection. It also found he could relocate to areas other than Kidderpore Town such as Delhi and Mumbai to avoid the risk of harm. Then, applying the law applicable to non-refoulement protection to the above finding of fact, the Board came to the conclusion that the Applicant is not entitled to non-refoulement protection under any of the four applicable grounds under the USM. These are mixed finding of facts and of the law. Insofar as these are finding of the law, they are absolutely correct. Insofar as these are finding of fact, they are exclusively within the province of the Board, which the Court on a judicial review will not interfere, save when such finding involved error of law, procedural unfairness and irrationality. The Court could detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge his burden of proving his fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success. 20.For the above reasons, the Applicant’s leave application is refused. Dated the 4th 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
Form CALL-1 [1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”) [3] Risk of persecution by reference to the non-refoulement principle under Article 23 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol [4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 [5] https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL002721_2025_files/the_Board's_Decision.pdf [6] [2018] HKCA 524 at [14(1)] |
Cases cited in this judgment