Rahman Mofiz v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 547/2020

[2025] HKCFI 2307

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 547 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:- (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.

2.   The Applicant’s application for adjournment made on 12 May 2025 be refused.

3.   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 named the adjudicator of the Board responsible for the Board’s Decision as the proposed respondent, and the Board as the proposed interested party.  As it is trite that the Board should be the proposed respondent whereas 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, I pointed out to the Applicant that he had not provided any grounds in the Form or in the supporting Affirmation, and asked whether he had anything to say.  The Applicant said he had given the details in the documents.  The Applicant then asked for an adjournment so that he could be given more time to prepare for the hearing.  I told the Applicant that this is the hearing he requested and he should have prepared everything for this hearing.  I asked the basis of his request for adjournment and the Applicant said he only received the Notice of Hearing from the Court and he did not have the telephone number of the Court.  The Applicant has failed to explain the relevance of this to the Leave Application or to his request for adjournment. 

4.In the premises, I see no reason to adjourn the Leave Application and the application is refused.

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 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 and the hearing bundle before the Board. 

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.  In particular, the Board had thoroughly considered the Applicant’s claims and the evidence, and was entitled to reject his claims (§§35-56 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.

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.    

Conclusion

10.In the premises, I make an order that the Form be amended as described above, the application for adjournment be refused, 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/HCAL000547_2020_files/the_Board's_Decision.pdf