Shekhar Daniel v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 771/2022

[2026] HKCFI 5031

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 771 of 2022

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following;

	consideration of documents only;          or
	consideration of the documents and the Applicant being absent in open court;

Order by Deputy High Court Judge (Non-refoulement Claims) Bonnie Cheng:    

1.  Form 86 be amended, naming the Torture Claims Appeal Board/Non‑refoulement Claims Petition Office as putative respondent and the Director of Immigration as putative interested party.

2.  The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.By Form 86 dated 16 August 2022 (“Form 86”), the Applicant seeks leave to apply for judicial review (“Leave Application”) against the Decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“Board”) dated 25 July 2022 (“Board’s Decision”), which affirmed the Decision of the Director of Immigration (“Director”) dated 31 May 2019.

2.The Form 86 incorrectly named the putative respondent and the putative interested party. I therefore amend the Form 86 on my own motion to name the Board as putative respondent and the Director as putative interested party.

3.An oral hearing, which was requested by the Applicant, took place before me on 3 March 2026. The Applicant was however absent from the hearing.

Background

4.The Applicant is from India. His background and the basis of his application for non-refoulement were set out in detail in the Board’s Decision at this hyperlink.[1] I will not repeat them here. Unless otherwise specified, I adopt the abbreviations in the Board’s Decision.

5.In short, the Applicant claimed to be in fear of being harmed by a lady’s family due to their romantic relationship.

Discussion

6.Leave application is meant to be a filtering process and the court is not expected to give elaborate reasons for its decision: Re Zunariyah [2018] HKCA 14 at §23. I therefore set out below brief reasons for my decision, which I have reached upon considering all the materials before me.

7.The court’s role in judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. While the court adopts in non-refoulement cases an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board. Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board: Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(1). There must be a reasonably arguable case, namely one which enjoys a realistic prospect of success, before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 at §§14-17.

8.In a proper Form 86, an applicant is required to state the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (HCAL 21/2015, 22 December 2016) at §142. He or she is also under a duty to make full and frank disclosure of material facts: Kan Hung Cheung v The Director of Immigration [2008] HKC 323 at §§14-17.

9.In the Leave Application, the Applicant has not stated any ground of judicial review. He has not identified any error of law or procedural unfairness or irrationality in the Board’s Decision to demonstrate a reasonably arguable case.

10.In any event, I have reviewed the Board’s Decision and I do not detect any error of law, procedural unfairness or irrationality. The Board assessed the evidence in detail and gave adequate reasons for its decision. In particular:

(1)  The Board noted that while the Applicant stated that the lady’s uncle was a senior political leader and exercised powerful influence over local villagers and authorities, the uncle did not have any direct contact with the Applicant. There was also no evidence that the uncle was involved in the matter of the relationship between the Applicant and the lady: §29.

(2)  Further, the Board was not satisfied with the Applicant’s evidence on the assault he claimed to have suffered. Although he described the assault as severe, he did not go to hospital for treatment: §40.

(3)  In any event, the Board noted that the Applicant did not make any report of the assault to the police. Having considered the relevant COI, the Board took the view that reasonable state protection would be available to the Applicant if he should return to his country: §§53-54.

11.In the premises, I conclude that the Applicant’s intended challenge against the Board’s Decision is not reasonably arguable.

Conclusion

12.I make an order that the Form 86 be amended as described above and the Leave Application be dismissed.

Dated the 7^th 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