Rasel Mohammad Abu v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3671/2019

[2025] HKCFI 1135

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3671 of 2019

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge (Non-refoulement Claims) Philips Wong:

1.  Form 86 be amended as follows:- (1) the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office be named as the Putative Respondent; and (2) the Director of Immigration be named as the Putative Interested Party; and

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

Observations for the Applicant:

Introduction

1.By Form 86 filed on 10 December 2019 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against: (1) the Decision of the Director of Immigration (the “Director”) dated 19 December 2018 (the “Director’s Decision”); and (2) the decision of the Torture Claims Appeal Board / Non‑Refoulement Claims Petition Office (the “Board”) dated 5 December 2019 (the “Board’s Decision”).

2.The Director’s Decision has been superseded by the Board’s Decision. The Director’s Decision is not a decision susceptible to judicial review once an appeal to the Board had been pursued (see Re: Moshsin Ali [2018] HKCA 549, at §§31-45).   Accordingly, the Leave Application in relation to the Director’s Decision fails in limine and is dismissed. 

3.In the Form, the Applicant has named both the Director and the Board as the proposed respondents and proposed interested parties.  As it is trite that the Board should be the proposed respondent whereas the Director should be the proposed interested party, I make an order to amend the same accordingly on the court’s own motion.

4.The Applicant had requested for an oral hearing for the application.  The hearing was held on 4 March 2025.  The Applicant attended in person.  The Applicant however indicated that he had no further submissions to make, apart from those stated in the Form and in the supporting Affirmation.  He also indicated that he had no further documents to adduce.

Background

5.The Applicant’s background, the basis of his claim and the arguments he advanced had been set out in details in the Board’s Decision, and it is not necessary for me to repeat the same here.  The hyperlink to the Board’s Decision is included below [1]for reference.

Discussion

6.The applicable legal principles relating to application of this sort are well established.  The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases, the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence, country of origin information (COI) materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director).  The Court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board.  (See Nupur Mst v Director of Immigration [2018] HKCA 524, at §14)

7.In the Form, the Applicant simply alleged that the Board’s Decision was unreasonable and that his claim was not carefully considered.  In the supporting Affirmation, the Applicant further claimed that the Board had failed to consider all the matters raised in his claims, and/or give adequate reasons for the decision. 

8.I have considered the Board’s Decision in details.  I do not find any error of law, procedural unfairness or irrationality.  Neither has the Applicant been able to demonstrate any of the same.  There is nothing to indicate that the Board had failed to take into account any relevant matters. The Board’s Decision was comprehensive with adequate reasons provided.  It satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational.  I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success.  Accordingly, I refuse to grant leave for judicial review and the Leave Application is hereby dismissed.

9.Leave application of this sort is meant to be a filtering process and I am not expected to give elaborated reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23).  Suffice for me to state that in reaching the decision, I have considered all the relevant documents before me, as well as the grounds advanced by the Applicant.    

Conclusion

10.In the premises, I make an order that the Form be amended as described above and the Leave Application be dismissed.

Dated the 27^th day of March 2025

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] https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003671_2019_files/the_Board's_Decision.pdf