Mohammed Qamaaluddin Ahmed v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 539/2023

[2026] HKCFI 4802

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 539 of 2023

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 documents and the Applicant being absent in open court;

Order by Deputy High Court Judge (Non-refoulement Claims) Val Chow:

1.  Form 86 be amended on the court’s own motion as follows:-

a.  The Torture Claims Appeal Board / Non-Refoulement Claims Petition Office be named as the Putative Respondent; and

b.  The Director of Immigration be named as the Putative Interested Party.

2.  Leave be granted to the Applicant to apply for judicial review in respect of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office’s decision dated 22 March 2023.

Observations for the Applicant:

Introduction

1.By Form 86 filed on 4 April 2023 (the “Form 86”), the Applicant sought leave to apply for judicial review (the “Leave Application”) against the decision of the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office (the “Board”) dated 22 March 2023 (the “Board’s Decision”).

2.In the Form 86, the Applicant has named the Board as both the proposed respondent and the proposed interested party. As it is trite that the Board should be the proposed respondent whereas the Director of Immigration (the “Director”) should be the proposed interested party, I make an order to amend the Form 86 accordingly on the court’s own motion.

3.An oral hearing was requested by the Applicant. It took place before me on 20 July 2026 (the “Hearing”) and the Applicant was absent. Nevertheless, I shall consider the Leave Application on paper.

Background

4.The Applicant’s background, the basis and history of his claim and the arguments he advanced had been set out in detail in the Board’s Decision, and it is unnecessary for me to repeat the same here. The hyperlink to the Board’s Decision is included below[1] for reference. The gist of the Applicant’s non-refoulement claim is that, if he were to return to India, he would be harmed or killed by an individual known as Sirsalam Guard (“SG”) who is alleged to be an influential politician because he became involved in a land dispute with SG.

Discussion

5.The leave application is intended to be a filtering process and elaborate reasons are not necessary, see: Re Zunariyah [2018] HKCA 14 at §23. Hence, I shall set out the brief reasons for my decision below.

6.An applicant, even if unrepresented, is required to properly identify the grounds of judicial review in the Form 86, and to fully and frankly disclose all material facts and potential legal answers, see: Ho Loy & Another v Director of Environmental Protection HCAL 21/2015 (unreported, 22 December 2016) per Chow J (as he was then) at §142. Where a Form 86 contains only general assertions without particulars as to underlying facts or matters upon which the Board’s Decision is said to be erroneous, such assertions are not effective grounds to support a judicial review, see: Re Haider Khalil [2021] HKCA 223 at §16.

7.The Applicant has failed to condescend to particulars in his papers for the Leave Application. Various blanket complaints were made in the Form 86 that the Board’s Decision was (amongst others) irrational, procedurally unfair or that the Board had failed to treat the Applicant fairly in light of his lack of legal representation. These complaints are based on a generic template with no elaboration as to the circumstances in which the alleged errors were said to have been made and how they were material to his claim. For example, the Applicant complained in §10 of his grounds of review that the Board had relied upon outdated cases without identifying what these cases were.

8.Nevertheless, having examined the Board’s Decision, I am satisfied that there is a reasonably arguable case that the Board has failed to give sufficient reasons for finding none of the applicable grounds for non-refoulement were substantiated (§54):-

(1)  It is trite law that, in the context of non-refoulement claims which involved fundamental rights of the individual concerned, reasons should be given for the rejection of the claim. The reasons need not be elaborate but must be sufficient to enable an applicant to consider the possibilities of further recourse (such as judicial review), see: Security for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 at §51 per Li CJ.

(2)  The reasons should be cogent, adequate and intelligible, and would enable one to understand (a) what evidence they accept; (b) what evidence they reject; (c) whether there is any evidence as to which they cannot make up their minds whether or not they accept it; and (d) what, if any, evidence they regard as irrelevant, see: MDB v Betty Kwan HCAL 18/2012 (unreported, 21 March 2014) at §55 per Au J (as he then was).

(3)  Although the Board has summarised the Applicant’s case and evidence (including his background, his evidence on how the land dispute arose and how he and his family was threatened and harmed by SG and his associates) and his answers to the Board’s question at the hearing before the Board (§§28-52) in the Board’s Decision, the Board then went on to conclude that the Applicant had failed to make out a case on any of the applicable grounds because the Applicant’s claim was not supported by credible evidence (§54). There was no analysis at all as to which aspect of the Applicant’s case was accepted, rejected or found to be irrelevant. In my view, it is reasonably arguable that it would not be apparent to an objective reader of the Board’s Decision as to why the Board found the Applicant’s evidence to be incredible.

(4)  I note that the Board has further held that any risk of harm would be reduced or negated by the availability of internal relocation alternatives to the Applicant having regard to his personal circumstances and detailed reasons were given (§§55-59). However, this issue is not a standalone question which is completely independent from the assessment of the risk of harm. Whether the Applicant can be said to be able to relocate to another part of the country is a matter which must be considered together with the nature, degree and extent of the alleged risk of harm towards him. For the purpose of granting leave, I consider it reasonably arguable that, the duty to give reasons was not properly discharged by the Board in giving reasons only in respect of the internal relocation issue when apparently no or insufficient reasons were given on its conclusion on the lack of risk of serious harm.

Conclusion

9.Accordingly, leave is granted on the ground that the Board had failed to give adequate reasons in rejecting the Applicant’s claim.

Dated the 2^nd day of October 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