Case Document

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HCAL 571/2023

[2025] HKCFI 2232

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 571 OF 2023

BETWEEN
	Abdul Salam Muhammadullah	Applicant
	and
	Torture Claims Appeal Board and	Putative Respondent
	Director of Immigration	Putative Interested Party

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

consideration of the documents only; or

consideration of the documents and oral submissions by the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

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

Observations for the Applicant:

1.The Applicant is a 40-year-old national of Afghanistan who entered Hong Kong illegally on 6 June 2015 and was arrested by police on 9 June 2015. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim for protection on the basis that if he returned to Afghanistan he would be harmed or killed by the then terrorist group Taliban for refusing to heed their demands or to cooperate with them. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Zurmat, Paktia Province, Afghanistan. He did not receive any formal education, and in 2003 worked as a machinery operator for a government construction company in roads construction projects.

3.In March 2015 he and his colleagues were sent by the company to build roads in Zurmat where there was a large military presence of the Taliban insurgents who were regarded as terrorists by the then Afghanistan government, and soon they came to demand the Applicant to stop the construction and to quit his job working for the government, and when the Applicant pleaded with them that he needed his job to make his living, the Taliban then beat him, and threatened to kill him if he failed to heed their demands.

4.One night in March or April of 2015, some Taliban came outside of to his home and fired a rocket at his house that it collapsed and killed his parents, but the Applicant managed to escape from the scene and fled to Kabul City, and on 13 May 2015 he departed Afghanistan for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 7 March 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.By a Notice of Decision dated 14 June 2016 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

6.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from the Taliban insurgents upon his return to Afghanistan as low due to the low intensity and frequency of past ill‑treatment from them, that since he no longer worked for his former company or in any construction projects to the objection of the Taliban that there is no reason for the Taliban to have any further adverse interest in him, that in any event in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Afghanistan with a large population of 32 million people spread across a vast territory of more than 652,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from his home district in large cities such as Kabul where it would be difficult if not impossible for the Taliban to locate him.

7.On 24 June 2016 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but before it could be heard or dealt with by the Board, the Applicant by a letter dated 21 September 2016 requested to withdraw his appeal for his stated reason, and upon being satisfied that he had good reason to do so, the Board by a Notice dated 6 October 2016 acceded to the Applicant’s request and allowed his appeal to be withdrawn, and also confirmed the Director’s decision.

8.Meanwhile the Director on his own initiative by a letter dated 18 July 2017 invited the Applicant to submit any additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute and non-derogable rights under the HKBOR including right to life under Article 2 (“BOR 2 Risk”), and in the absence of any response or reply from him, the Director by a Notice of Further Decision dated 4 August 2017 also rejected the Applicant’s BOR 2 Claim upon finding that he had failed to establish any personal or real risk of his absolute and non-derogable rights under HKBOR including right to life under BOR 2 being violated upon his return to Afghanistan.

9.On 11 January 2018 the Applicant again lodged an appeal to the Board against this Further Decision of the Director, but as his notice of appeal was filed outside the 14-day period required under Section 37ZS(1) of the Immigration Ordinance, the Board in pursuance of Section 37ZT (2) of the Ordinance proceeded to decide as a preliminary decision without a hearing whether to allow the late filing of the notice of appeal, and by a Decision dated 26 April 2018 the Board refused to allow the late filing of the Applicant’s notice of appeal.

10.Upon subsequent leave being granted by this Court to the Applicant to apply for judicial review of the Board’s decision, and upon an order dated 26 April 2018 being granted by consent for the Board’s decision to be set aside, and that a differently constituted Board on 19 August 2021 allowed the late filing of the Applicant’s notice of appeal, and for which the Applicant then attended an oral hearing on 22 August 2022 with his lawyer from DLS before the Board during which he gave oral evidence and answered questions raised of his claim under BOR 2 Risk by a different Adjudicator for the Board, and also with submissions made on his behalf by his lawyer to the Board.

11.By a Decision dated 24 February 2023 the Board dismissed the Applicant’s appeal upon finding material inconsistencies and discrepancies in his evidence from those previously given to the Director and which he failed to properly explain those discrepancies that the Board doubted the veracity of his evidence as unreliable, and in the absence of any evidence of any further adverse interest of the Taliban in him that the Board rejected his claim under BOR 2 Risk, and in any event it found on the factual basis of even his own case that the Applicant’s claim simply did not engage the BOR 2 ground on its limited scope, and that the Board also confirmed the Director’s Further Decision.

12.On 11 April 2023 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or his supporting affirmation of the same date in which he just asserted that the Board refused his case without any valid reason but without providing any details or particulars or elaboration as to how it did so. As such, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

13.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

14.In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim as well as submissions made by his lawyer on his behalf, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, and given the fact that on the basis of even his own case that it did not engage the BOR 2 ground as correctly found by the Board, I do not find any reasonably arguable basis to challenge the finding of the Board.

15.Furthermore, the fact is that it has also been established by the Director in his earlier decision that the risk of harm in the Applicant’s claim even if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Afghanistan, a decision also confirmed by the Board in its earlier decision when the Applicant withdrew his first appeal, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

16.Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s BOR 2 Claim, or for that matter in the Director’s determination of his other applicable claims under torture risk, BOR 3 risk or persecution risk in the earlier decision.

17.Moreover, the Applicant recently on 24 February 2025 filed an affirmation requesting to withdraw his application as his issues in his home country have now been resolved.

18.In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation of no more issues for him to return to his home country, I accordingly dismiss his leave application.

Dated the 3^rd day of June 2025

(Chung Lai Fan, Christine)
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 to the Applicant on 3 June 2025 Abdul Salam Muhammadullah Applicant’s ref. no.: Nil.		Sent 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 3 June 2025 Torture Claims Appeal Board Respondent’s ref. no.: BOR 1112 (R) Director of Immigration Interested Party’s ref. no.: RBCZ 9000142/17 (Formerly RBCZ 12032/15) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)