Case Document

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HCAL 1098/2023

[2026] HKCFI 5994

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1098 OF 2023

BETWEEN

	Singh Priysen	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 the applicant being absent in open court;

Order by Deputy High Court Judge Michael WONG:

1. 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 6 July 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 9 June 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/HCAL001098_2023_files/the_Board's_Decision.pdf

2.The Board found that the applicant’s claim for non-refoulement protection were not made out on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board confirmed the decision of the Director of Immigration (“the Director”) dated 19 August 2021 (“the Director’s Decision”), 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 killed by his business partners, namely Vishal Sharma, Sanjay Patwara and Nitin Sahi, over a business dispute.

Oral hearing

5.The applicant requested for an oral hearing of the Leave Application. However, the applicant was absent at the hearing on 22 October 2026.

6.As held in Re Abdus Salam [2019] HKCA 1091, an application for leave to bring judicial review should not be dismissed for want of prosecution merely because the applicant failed to attend the oral hearing of the leave application. The correct approach is to treat the applicant as having withdrawn the request for a hearing by reason of the absence at the hearing, and to proceed to determine the leave application on its merits.

7.Thus, this court will proceed to consider the merits of the Leave Application based on the written materials before this court.

Grounds for judicial review

8.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).

9.The applicant did not advance any grounds for the intended judicial review in Form 86.

10.In his supporting affirmation dated 6 July 2023, under the heading “GROUNDS FOR JUDICIAL REVIEW”, the applicant advanced 6 grounds for judicial review. The grounds are summarised as follows:-

(1)  The adjudicator did not consider his claim;

(2)  The adjudicator did not accept his documents as the documents were in his mother language;

(3)  The officer refused to give him time to translate the documents because he had no time;

(4)  The translator did not help him at all and became angry if the applicant did not understand;

(5)  The interpreter asked him not to take long time for interview as he had another job; and

(6)  He asked the court to help him and save his life.

Discussion

11.First of all, all the matters that were stated as “GROUNDS FOR JUDICIAL REVIEW” in his supporting affirmation (except ground (6) which is not a ground at all) were asserted without any specificity. Many applicants in similar applications used them like a template without any regard to their own cases. The applicant is no exception.

12.He did not state: (1) how the adjudicator did not consider his claim (apart from saying the adjudicator did not take time or did not think about his life); (2) which part(s) of his claim was not considered; (3) what documents he intended to submit were rejected as they were not translated; (4) how the interpreter or translator’s attitude had prejudiced him; and (5) what he wanted to tell the Board was not presented because of the attitude of the interpreter or translator.

13.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”.

14.Thus, the general assertions that were contained in the applicant’s affirmation cannot help him at all.

15.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).

16.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.

17.In assessing the applicant’s appeal/petition, the Board held an oral hearing on 6 October 2022 and the applicant was present. Thus, the applicant was given the opportunity to present his case to the Board in person.

18.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. The Board had laid out in details as to what transpired at the Board’s hearing in paragraphs 37 to 81 of the Board’s Decision and its findings on the applicant’s credibility and his claims in paragraphs 83 to 95 of the Board’s Decision.

19.In gist, the Board was not satisfied that the applicant had been a credible witness. The applicant’s claims and evidence contained significant contradictions. A number of aspects of his claims made little if any sense. The applicant’s claims also seemed to evolve and grow in seriousness since the Director’s Decision. The applicant made several new and disturbing claims at the review stage including that his enemies had been going to his home 2 to 3 times per day, that they had threatened to kidnap his child, and that one of them had a criminal record. These claims gave the Board the impression that the applicant was just making things up in an attempt to magnify the risk he claimed to be facing. The Board found that these aspects of the applicant’s claims made little sense. The Board also found that the other aspects of the applicant’s claims, including the claimed influence and political connections of his enemies, seemed at the very least to have been exaggerated for dramatic effect.

20.After careful consideration of the applicant’s claims and evidence, the Board essentially rejected the applicant’s account in its entirety. In particular, the Board did not accept that the applicant was involved in a business relationship as he had described, that he was owed money by his former business associates, or that they had threatened to harm or kill him and/or his family members as a consequence.

21.Thus, the Board was not satisfied that the applicant faced any risk of being subjected to serious or significant harm for the reasons claimed if he was to return to India. The Board concluded that the applicant’s claims for non-refoulement protection were not made out on any of the applicable grounds under the USM.

22.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 did not face any real risk of harm.

23.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).

24.As it is the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm upon his return to India, it is not necessary for the Board to consider internal relocation.

25.The finding of facts, including the assessment of evidence 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 come to its own conclusion. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

26.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.

27.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

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

Dated the 28^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: 28/10/2026 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: 28/10/2026 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative respondent’s ref. no.: USM 18627 Director of Immigration Putative interested party’s ref. no.: QA T/C 738/21 (formerly RBCZ 10845/20) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)