Case Document

100%

HCAL 353/2026

[2026] HKCFI 5650

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 353 OF 2026

BETWEEN

	Rahman Abdur	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 (Order 53, rule 3)

Following:

consideration of the documents only; or

consideration of the documents and oral submissions by the applicant or counsel in open court;

Order by Deputy High Court Judge Michael WONG:

1. The applicant’s application to withdraw the application for leave to apply for judicial review be refused.

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

Observations for the applicant:

The Leave Application

1.By way of Form 86 dated and filed on 9 February 2026, 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 17 December 2025 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2026/HCAL000353_2026_files/the_Board's_Decision.pdf

2.The Board found that the applicant had failed to demonstrate that he was entitled to non-refoulement protection in Hong Kong on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board dismissed his appeal/petition against the decision of the Director of Immigration (“the Director”) dated 31 October 2025 and confirmed the same, which rejected the applicant’s non-refoulement claim.

The applicant’s case

3.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.

4.In sum, the applicant claimed for non-refoulement protection because if refouled to India, he feared being harmed or even killed by a fund-donor named Rajesh, who demanded refund of the donations he made to the Islamic educational institute (“the Institute”), where the applicant worked as a Vice Principal, but the Principal of the Institute refused to repay the donations as requested.

Withdrawal of the Leave Application

5.By way of his affirmation dated 23 September 2026, the applicant applied to withdraw the Leave Application. However, the applicant did not state that it was safe for him to return to his country or that his problems had been resolved. In the said affirmation, the applicant only stated that he did not have any objection against the Board and the Director now.

6.However, the Director informed this court on 30 September 2026 that the applicant wrote a letter dated 28 September 2026 to withdraw the Leave Application. In the said letter, the applicant stated that he wanted to return to his country as soon as possible, his issue in his country had been resolved and it was safe for him to go back home.

7.There is no evidence to show that the applicant made the above withdrawal application other than out of his own volition. With the withdrawal application, it is clear that the applicant no longer wishes to proceed with the Leave Application.

8.However, the Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 that:-

“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

9.Thus, it is just not right to leave the action at large by granting leave to withdraw to the applicant. This court will proceed to deal with the Leave Application.

Grounds for judicial review

10.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).

11.However, the applicant did not advance any grounds for judicial review in Form 86, nor in his supporting affirmation dated 9 February 2026.

Discussion

12.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).

13.Thus, despite the fact that the applicant did not advance any ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality as aforesaid.

14.The applicant was afforded an oral hearing before the Board on 5 December 2025 and the applicant was present. Thus, the applicant did have the opportunity to present his case to the Board in person.

15.The Board had laid out its assessment and findings on the applicant’s case in paragraphs 79 to 134 of the Board’s Decision, and it is not necessary to repeat the same here.

16.In gist, the Board found that the applicant had given illogical and/or inconsistent account in relation to: (a) the reasons that he had been targeted by Rajesh; (b) the threats that he had received from Rajesh; and (c) the actions that he had taken to avoid Rajesh. The Board found that the said discrepancies had severely damaged the credibility of the applicant. On the illogical account of events coupled with untruthful nature of the applicant’s evidence, the Board had serious doubts whether there were the alleged donations and the Board found that the applicant had not convinced it on the balance of probabilities that he had been or would be threatened and/or harmed by Rajesh as alleged.

17.Despite its findings as summarised above, the Board still assessed the applicant’s case by taking it at its highest and on the basis that his account was true and there was the harm done and threats as alleged. However, the Board still found that the applicant would not be subjected to real risk of proscribed harm upon his return to India.

18.The Board found that the applicant had not sustained serious injuries in the three alleged assaults by Rajesh. Rajesh had not harmed any of his family members. The Board also found that Rajesh was not powerful and influential as alleged. The applicant had failed to prove that the alleged harm was inflicted on him with the acquiescence of the state.

19.With regards to the availability of state protection, the Board found that there was no evidence to suggest that if the applicant and/or his family members reported the alleged threats and harms posed by Rajesh to the Indian police or higher authorities or other institutions in India, the same would not investigate into the matter (see paragraphs 154 to 166 of the Board’s Decision).

20.In addition, the Board had given full reasons in paragraphs 168 to 176 of the Board’s Decision for the conclusion that it would not be unreasonable or unduly harsh to require the applicant to relocate to Delhi or Bangalore to avoid the risks in question, if any.

21.Thus, the Board found that there were no substantial grounds for believing that the applicant would suffer ill-treatment, serious harm, arbitrary deprivation of life or persecution upon refoulement.

22.The finding of facts, including the assessment of evidence, country of origin information and risk of harm, was primarily within the realm 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 decision.

23.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.

24.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 intended judicial review has no realistic prospects of success at all, and hence the Leave Application must be dismissed.

25.Moreover, as the applicant had confirmed that it was safe for him to return to his country, the basis of his non-refoulement claim no longer exists.

26.It is clear that the applicant no longer needs non-refoulement protection and the intended judicial review serves no practical purpose.

27.It is well established that the court may exercise discretion not to grant a remedy on judicial review if it would serve no practical purpose, where it may have become otiose or pointless to grant a remedy because the relevant detriment to the applicant has been removed (see AW v Director of Immigration and William Lam, CACV 63 of 2015).

28.Even assuming that there were errors of law, procedural unfairness or irrationality in the Board’s Decision and the case were remitted to the Board for reconsideration, there would simply be no more basis for the applicant to claim non-refoulement protection as it was no longer unsafe for him to return to his own country. The Board should assess the risk of the applicant at the time of the proceedings, taking account of information that has come to light to ensure that it is able to make a “full and up-to-date assessment” of the current situation (see Ubamaka Edward Wilson v Secretary for Security and Another (2012) 15 HKCFAR 743).

29.It is therefore otiose and pointless to grant leave to the applicant to proceed with the intended judicial review even if there were merits in it. Thus, the Leave Application ought to be dismissed for this reason as well.

Conclusion

30.For reasons aforesaid, the application to withdraw the Leave Application is refused and the Leave Application is dismissed.

Dated the 7^th day of October 2026

(Gladys LEE)
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/Handed to the applicant/the applicant’s solicitors on: 07/10/2026 Applicant’s ref. no: Nil		Sent/Handed 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: 07/10/2026 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative respondent’s ref. no.: USM 27519 Director of Immigration Putative interested party’s ref. no.: QA T/C 1266/25 (Formerly RBCZ 5001162/25) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)