Case Document

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HCAL 1847/2023

[2026] HKCFI 6002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1847 OF 2023

BETWEEN

	Bisht Ajay	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 13 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 26 September 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/HCAL001847_2023_files/the_Board's_Decision.pdf

2.The Board found that the applicant’s claims 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 21 July 2022, which rejected the applicant’s 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 claimed for non-refoulement protection because if refouled to India, he would be harmed or even killed by his paternal uncle and his people, in connection with a land dispute.

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 had a problem in his home country and he did not want to go back.

9.When this court asked the applicant what was wrong with the Board’s Decision, he said that the Board’s Decision was “okay” and it was right, but he still had risk in India.

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 13 October 2023.

12.As aforesaid, the applicant did not advance any valid ground at the oral hearing either. He only mentioned that he had a problem in his country and he did not want to go back. The applicant in fact admitted that there was nothing wrong with the Board’s Decision, but his risk still existed in India.

Discussion

13.First of all, the applicant’s danger or risk 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/petition by the applicant, the Board held an oral hearing on 31 May 2023 and the applicant was present. Thus, the applicant was given the opportunity to present his case to the Board in person.

17.The Board had laid out in details as to what transpired at the Board’s hearing in paragraphs 33 to 68 of the Board’s Decision and its findings on the credibility of the applicant and his claims in paragraphs 71 to 80 of the Board’s Decision.

18.In gist, the Board noted that the applicant’s claim was based on the claimed fact that the applicant inherited property from his late father, and his dispute with his paternal uncle arose from the applicant’s refusal to transfer the property to his uncle. However, the Board did not accept that the applicant’s father was killed as claimed, but on the contrary found that his father was alive and well as recently as May 2023 when his Facebook page was updated. The Board considered the applicant’s attempts to explain this evidence away by reference to third-party manipulation of his parents’ Facebook accounts or on the basis that all social media in India was fake nonsensical.

19.Consequently, the Board did not accept that the applicant inherited his late father’s property, either in his own right or jointly with his mother as the applicant belatedly claimed. It followed that the Board did not accept that the applicant was ever threatened, harmed or otherwise targeted by his uncle or the uncle’s associates in connection with the property as claimed, nor that there was any related complaint to the police which was not responded to. The Board explicitly stated that if the applicant was ever assaulted necessitating hospitalisation and stitching, the Board did not accept that it was for the reasons claimed.

20.Thus, the Board was not satisfied that the applicant faced any risk of being harmed whatsoever for the reasons claimed on his return to India, and rejected the applicant’s claim for non-refoulement protection on all the applicable grounds under the USM.

21.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 the applicant was not at a real risk of any of the proscribed forms of harm.

22.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).

23.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.

24.The finding of facts, including assessment of evidence 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 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 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: 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 20688 Director of Immigration Putative interested party’s ref. no.: QA T/C 75/22 (formerly RBCZ 5000463/21) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)