Masood Alam v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 540/2020

[2025] HKCFI 2305

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 540 of 2020

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:- the Director of Immigration be named as the Putative Interested Party.

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

Observations for the Applicant:

Introduction

1.By Form 86 filed on 7 April 2020 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against the decision of the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office (the “Board”) dated 2 March 2020 (the “Board’s Decision”).

2.In the Form, the Applicant has not named any proposed interested parties.  As it is trite that the Director of Immigration (the “Director”) should be the proposed interested party, I make an order to amend the Form on the court’s own motion.

3.The Applicant requested an oral hearing for the application.  The hearing took place on 12 May 2025 and the Applicant attended in person.  At the hearing, the Applicant referred to a letter issued by the Immigration Department (Registration of Persons and HKSAR Passports Appeal Section) dated 28 April 2025 (the “Letter”).  The Applicant said there was going to be a hearing in late May 2025 concerning his “appeal”, and he would make submissions in that hearing.  I asked what the hearing in late May is about and the Applicant said it is the matter mentioned in the Letter and is the same as the present hearing.  I note from the contents of the Letter that it was in relation to an appeal to Registration of Persons Tribunal (Case No. ROPT 197/24).  Accordingly, it should be a different matter from the present Leave Application.  When I explained to the Applicant that the present Leave Application is in relation to his intended application for judicial review against the Board’s Decision, the Applicant bizarrely claimed that he had never made any application for judicial review.  I further pointed out that this is the hearing he requested in respect of his Leave Application, and asked him whether he had anything to say in respect of the Leave Application.  The Applicant said he had nothing else to say.

Background

4.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

5.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)

6.In the Form and in the supporting Affirmation, the Applicant did not provide any grounds in support of the Leave Application.  In the supporting Affirmation, the Applicant simply attached the Board’s Decision. 

7.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.  In particular, the Board had thoroughly considered the Applicant’s claims and the evidence, and was entitled to reject his claims (§§25-57 of the Board’s Decision).  The Board’s Decision 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.

8.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.    

Conclusion

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

Dated the 6^th day of June 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/2020/HCAL000540_2020_files/the_Board's_Decision.pdf