Case Document

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HCAL 1874/2023

[2026] HKCFI 5756

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1874 OF 2023

BETWEEN

	Mog Thaiang	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 in open court;

Order by Deputy High Court Judge Michael WONG:

1. On this court’s own motion, the name of the putative interested party be amended to “Director of Immigration”.

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 17 October 2023, 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 23 August 2023 (“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/2023/HCAL001874_2023_files/the_Board's_Decision.pdf

2.The Board found that the applicant’s claims for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board dismissed the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 3 March 2023 and confirmed the same, which rejected his non-refoulement claim.

Amendment

3.The applicant named the Board as both the putative respondent and the putative interested party in Form 86, when the Board should only be named as the putative respondent, and the Director should be named as the putative interested party.

4.Thus, this court makes an order on its own motion to amend the name of the putative interested party to “Director of Immigration”.

The applicant’s case

5.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.

6.In sum, the applicant initially claimed for non-refoulement protection by way of his written representation that if refouled to India, his life would be in danger from his creditor.

7.However, the applicant stated in his Non-refoulement Claim Form that he was in fear of being harmed or killed by his neighbours, namely Utam and Goutam who were brothers (“the Brothers”), due to a land dispute.

Oral hearing

8.The applicant requested for an oral hearing of the Leave Application and his case was heard on 8 October 2026.

9.When this court asked the applicant for the grounds of his intended judicial review, he merely replied that he had a problem back in his home country for his life, but the Board said that it was safe for him to go back, and hence the Board was wrong.

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.The applicant did not advance any ground for his intended judicial review in Form 86, nor in his supporting affirmation dated 17 October 2023.

12.As aforesaid, the applicant did not advance any ground at the oral hearing either. He only mentioned that he had a problem in his country, and the Board was wrong to say that he could go back to his country.

Discussion

13.First of all, the applicant’s danger arising from his problem in his own country had been duly assessed but rejected by the Board. If the applicant intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review unless there were errors of law, procedural unfairness or irrationality in the Board’s Decision.

14.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).

15.Thus, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any valid ground being advanced by the applicant for the intended judicial review.

16.In assessing the appeal by the applicant, the Board held two oral hearings on 2 and 16 August 2023 respectively and the applicant was present. Thus, the applicant was given the opportunity to present his case to the Board in person.

17.As can be seen from the Board’s Decision, the Board had laid out its analysis of the applicant’s claims and found that the applicant had not made out a case for non-refoulement protection on any of the applicable grounds under the USM.

18.In gist, in relation to the applicant’s initial basis of claim, ie his life was in danger from his creditor, the evidence of the applicant at the Board’s hearing was that he only learnt later that the information written on the Interview Report were false, including his family did not call him after his arrival in Hong Kong and he had no “money problem” as such (see paragraph 12(m) of the Board’s Decision).

19.The Board found that the interpreter helping the applicant at his interview with the immigration officer could not possibly interpret a completely different story in front of the interviewing officer as well as the applicant, and that the applicant would sign on it without knowing clearly what was written there about money problem and his family did call him after his arrival in Hong Kong (see paragraph 15(e) of the Board’s Decision).

20.The Board’s analysis of the applicant’s claim with regards to his fear of harm from the Brothers can be found in paragraphs 25 to 29 of the Board’s Decision. In short, the Board did not accept that there were any attacks from the applicant’s enemies which could attain a minimum level of severity. There was no evidence to show that the enemies took any revenge before the applicant left home after the applicant injured Goutam or thereafter.

21.On the issue of state protection to the applicant, the Board found that although the Indian enforcement and judicial system was far from perfect, there was insufficient evidence to suggest that it fell below the standard expected from the international community such that the applicant would be at risk from being subjected to infringement of BOR 2[1] or BOR 3[2] (see paragraphs 30 to 33 of the Board’s Decision).

22.Moreover, the Board had given full reasons in paragraphs 34 to 39 of the Board’s Decision for its conclusion that it would not be unduly harsh or unreasonable for the applicant to relocate in other places in India so as to lower or negate the perceived risk from his enemies, which was assessed to be localised, upon his return to his country.

23.Thus, the Board concluded that the applicant did not face a real risk of being subjected to any of the proscribed forms of harm under the USM if he was refouled to India.

24.The finding of facts, including assessment of evidence, country of origin information 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.

25.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.

26.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

27.For reasons aforesaid, the Leave Application is dismissed.

Dated the 14^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 the applicant’s 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: 14/10/2026 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: 14/10/2026 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative respondent’s ref. no.: USM 21576 Director of Immigration Putative interested party’s ref. no.: QA T/C 88/23 (formerly RBCZ 5000038/23) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)