Shaji Arun v. Torture Claims Appeal Board
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HCAL 810/2026 [2026] HKCFI 6015 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 810 OF 2026 BETWEEN
Application for leave to apply for judicial review NOTIFICATION of the Judge’s decision (Order 53, rule 3) Following:
Order by Deputy High Court Judge Michael WONG:
Observations for the applicant: The Leave Application 1.By way of Form 86 dated and filed on 27 April 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 13 April 2026 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:- 2.The Board found that the applicant was unable to make out his claims for non-refoulement protection on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board rejected the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 13 January 2026 and confirmed the same, which rejected the applicant’s non-refoulement claim. Amendments 3.The applicant named the Board and Immigration Department as the putative respondents and the Board as the putative interested party in Form 86, when only the Board should be the putative respondent and the Director should be the putative interested party. 4.Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and 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 claimed for non-refoulement protection because if refouled to India, he would be seriously harmed or even killed by his friend Srubin[1]’s wife Ajmia[2]’s paternal grandfather Ibrahim Kutty (“Ibrahim”) and his people, as Ibrahim thought that the applicant was involved in assisting Srubin and Ajmia’s escape. Oral hearing 7.The applicant requested for an oral hearing of the Leave Application and his case was heard on 22 October 2026. 8.When this court asked the applicant for the grounds of his intended judicial review, he merely replied that he could not go back to his country because his life was in danger, that he had given all the evidence to the Board, and that he had a scar on his left hand as a proof. 9.When this court asked the applicant what was wrong with the Board’s Decision, the applicant said that the Board did not take into account the danger in his country, and he wanted to stay in Hong Kong for some more time. 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 grounds for the intended judicial review in Form 86. 12.In his supporting affirmation dated 27 April 2026, the applicant only mentioned that he was not satisfied with the Board’s Decision, he did not want to go back to his country because his enemy was very strong politically and financially, he could not fight against them, and his problem was very serious. He added that when he went outside[3], he would give evidence to support his case. 13.As aforesaid, at the oral hearing, the applicant told this court that he could not go back to his country, his life was in danger, he had given all the evidence to the Board, and that he had a scar on his left hand as a proof. He added that the Board did not take into account the danger in his country. Discussion 14.First of all, the applicant’s danger from his enemy in his own country had been duly assessed but rejected by the Board. The Board was clearly aware of the scar on the applicant’s left forearm (see paragraph 28 of the Board’s Decision). 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. 15.His mere comment in the supporting affirmation that he was not satisfied with the Board’s Decision and his complaint at the hearing before this court that the Board did not take into account the danger in his country cannot help him either. The applicant did not say why he was not satisfied with the Board’s Decision, or how the Board had erred in its assessment of his danger. 16.The Court of Appeal has repeatedly held that general assertions without particulars cannot be effective grounds to support a judicial review (see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; and Re Kharsu Numan [2019] HKCA 626). Further, as held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”. 17.Thus, such general comment and accusation do not constitute any valid grounds for judicial review. 18.With regards to his statement in his supporting affirmation that he would give evidence to support his claim when he was outside (taken to mean when he was released from detention), the applicant did not submit any further document since the filing of the Leave Application. He did not seek to submit any further evidence at the oral hearing before this court either. 19.Thus, what the applicant stated in his supporting affirmation and what he said at the oral hearing before this court cannot amount to any valid ground to challenge the Board’s Decision. 20.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). 21.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. 22.In assessing the applicant’s appeal/petition, the Board held an oral hearing on 17 March 2026 and the applicant was present via Video Conferencing System. Thus, the applicant was given the opportunity to present his case to the Board. 23.As can be seen from the Board’s Decision, the Board had extensively questioned the applicant at the Board’s hearing in order to try to understand his case better. What transpired at the Board’s hearing could be found in paragraphs 62 to 83 of the Board’s Decision. 24.The Board had laid out its consideration of the evidence, including its assessment of the credibility of the applicant and the risk faced by the applicant, in paragraphs 86 to 97 of the Board’s Decision. 25.In gist, the Board found that there were multiple internal inconsistencies with the applicant’s accounts in his Non-refoulement Claim Form and at the hearing which went to the crucial aspects of his case. Various important aspects of his evidence were highly unbelievable. The Board found the applicant wholly uncredible and his evidence as regards the alleged threats he faced from Ibrahim unbelievable. 26.The Board considered that the applicant’s evidence regarding the alleged threats made against him fell into the category of evidence to which the decision maker was not willing to attach any credence at all. In the circumstances, the Board found that the applicant had not shown that he faced a real risk of harm. 27.In the Board’s assessment of the applicant’s case against all the applicable grounds under the USM, the Board found that the applicant’s fear of Ibrahim was not for any Convention reasons. The Board did not find that the applicant had made out a case under Persecution Risk[4] or BOR 3 Risk[5]. Moreover, the Board found from the evidence that the applicant’s case was not one indicating that the authorities would fail to discharge its duties or tolerate any unlawful and abusive behaviour committed by an individual as a systemic practice. The applicant failed to establish the elements in section 37U of the Immigration Ordinance to establish that he was subjected to Torture Risk[6]. 28.However, this court notes that the Board had plainly committed an error of law in its interpretation of BOR 2 Risk[7]. In its assessment of the applicant’s BOR 2 Risk, the Board stated that “The risk relates to being deprived of life by the government upon refoulement” (see paragraph 101 of the Board’s Decision). 29.As held by the Court of Appeal in Kulwinder Kaur v Director of Immigration and another [2022] HKCA 48, “The authorities establish that the right to life is also violated by extra-judicial killings by State agents or by non-State actors, where the State fails to take steps to avoid a threat to life emanating from non-State actors or private persons.” Thus, violation of right to life is not confined to the deprivation of life by the government, as conceived by the Board. 30.However, as held in Re Kulwinder Kaur, supra, the issues under BOR 2 Risk are not separable from those under BOR 3 Risk. Upon determining that there is no BOR 3 Risk, there is no arguable ground for any BOR 2 Risk (see also AA v Sweden (2017) 64 EHRR 20 and RM v Gerard Paul Muttrie Esq, HCAL 166/2015, 3 March 2016). 31.As the Board had found that there were no substantial grounds for believing that the applicant would face a genuine risk of being subjected to ill-treatment under BOR 3, even if leave was granted to the applicant in the Leave Application for reason that the Board had erred in law in its interpretation of BOR 2 Risk, there is simply no reasonable prospect of success for his claim for non-refoulement protection in this regard. 32.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 (see AW v Director of Immigration and William Lam, CACV 63 of 2015). Thus, even assuming that the Board had committed the aforesaid error and the applicant’s case was remitted to the Board for re-consideration, the outcome for his non-refoulement claim would still be the same. This court is therefore not prepared to exercise its discretion to grant any remedy to the applicant. 33.Although the Board did not consider state protection and internal relocation, it was unnecessary to make findings on the availability of state protection as the Board found that the applicant was not at a real risk of harm. 34.As to internal relocation, it is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that he qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997). In other words, internal relocation only arises if the applicant has established a real risk of persecution in his home area (see Gardi v SSHD [2002] 1 WLR 2755). 35.As it is the Board’s finding that the applicant had no real risk of harm upon his return to India, it is not necessary for the Board to consider internal relocation. 36.Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that there is no realistic prospect of success for the applicant in the Leave Application and hence leave must be refused. Conclusion 37.For reasons aforesaid, the Leave Application is dismissed. Dated the 28th 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 [1] The Board spelt the name of the applicant’s friend as “Subrin” in paragraph 3 of the Board’s Decision. However, the Board spelt it as “Srubin” from paragraph 11 of the Board’s Decision onward. For the purpose of this decision, this court will adopt the spelling of “Srubin”. [2] The Board spelt the name of Srubin’s wife as “Anjia” in paragraph 87 of the Board’s Decision, but spelt her name as “Ajmia” elsewhere in the Board’s Decision. For the purpose of this decision, this court will adopt the spelling of “Ajmia”. [3] The applicant was detained at Castle Peak Bay Immigration Centre when his case was heard by the Board [4] Risk of persecution with reference to the non-refoulement principles under Article 33 of the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol. [5] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383. [6] Risk of torture under Part VIIC of the Immigration Ordinance, Cap 115. [7] Risk of violation of right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383. |
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