Sadeque Mohammad v. Torture Claims Appeal Board

HCAL 338/2020

[2025] HKCFI 2681

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 338 OF 2020

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 respondent be amended to “Torture Claims Appeal Board” and 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 9 March 2020, 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 5 March 2020 (“the Board’s 2^nd Decision”).

2.On 13 March 2017, the applicant filed a notice of appeal/petition (“the Notice”) against the decision of the Director of Immigration (“the Director”) dated 24 January 2017 (“the Director’s 2^nd Decision”), which was out of time.

3.In the Board’s 2^nd Decision, the Board refused the applicant’s application for late filing of the Notice. Thus, the Leave Application is only in respect of the Board’s decision in refusing the applicant’s application for late filing of the Notice.

4.Previously, the Director made a decision dated 22 December 2014 (“the Director’s 1^st Decision”) rejecting the applicant’s claim for non-refoulement protection under the Unified Screening Mechanism (“the USM”). At that time, the applicant’s claim was assessed on the grounds of Torture Risk[1], BOR 3 Risk[2] and Persecution Risk[3], but BOR 2 Risk[4] was not assessed.

5.The applicant lodged an appeal/petition to the Board on 8 January 2015. The Board gave a decision on 3 August 2015 (“the Board’s 1^st Decision”) rejecting the applicant’s appeal/petition and confirming the Director’s 1^st Decision.

6.In the Director’s 2^nd Decision, the Director rejected the applicant’s claim for non-refoulement protection as the applicant had failed to establish a personal and real risk of his absolute and non-derogable rights under the Hong Kong Bill of Rights, including BOR 2 Risk.

7.Thus, in filing the Notice, the applicant sought to appeal/petition against the Director’s decision in respect of his BOR 2 Risk, as the other risks had already been disposed of.

8.The Board’s 1^st Decision and the Board’s 2^nd Decision can be viewed in the following hyperlinks:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000338_2020_files/1^st_Board's_Decision.pdf

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000338_2020_files/2^nd_Board's_Decision.pdf

Amendments

9.The applicant named “Ian Candy Adjudicator of the Non-refoulement Claims Petition Office” as the putative respondent and the Board as the putative interested party in Form 86, when the Board should be the putative respondent and the Director should be the putative interested party.

10.The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board and does not have any power to determine the applicant’s appeal/petition at all. Mr Ian Candy was in fact making the Board’s 2^nd Decision on behalf of the Board in his capacity as a member of the Board, not the Non-refoulement Claims Petition Office.

11.This court noticed that Mr Ian Candy signed the Board’s 2^nd Decision as “Adjudicator of Non-refoulement Claims Petition Office” instead of “Member of the Torture Claims Appeal Board”. This is not a correct description of his capacity, as he was not making the determination on behalf of the Non-refoulement Claims Petition Office.

12.Under the USM, the Chief Executive has delegated his powers under Article 48(13) of the Basic Law to members of the Board to hear and determine petitions in relation to claims made on all applicable grounds other than Torture Risk (see paragraph 3.7 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme). Thus, only the members of the Board have the powers to hear and determine the applicant’s petition.

13.Nevertheless, the wrong description of his capacity does not nullify the Board’s 2^nd Decision, as Mr Ian Candy was indeed a member of the Board and did have the power to determine the applicant’s appeal/petition. It is just not right to name the Non-refoulement Claims Petition Office as a party in the Leave Application.

14.This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and the name of the putative interested party to “Director of Immigration”.

The applicant’s case

15.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 1^st and 2^nd Decisions, which can be viewed in the hyperlinks above.

16.In sum, the applicant claimed for non-refoulement protection because he knocked down and injured a person when driving a taxi in 2009 and he feared that he would be ill-treated by the family of the injured person if he were refouled to India. He also feared that he would be arrested by the police because the family of the injured person had made a report against him to the police and could bribe the police to do anything to him.

Oral hearing

17.The applicant requested for an oral hearing of the Leave Application. His case was heard on 10 April 2025.

18.The applicant reiterated the taxi incident and said that the incident broke the leg of the injured person. His mother died of stress as a result of mental torture caused by the family members of the injured man, and that the family was very powerful. His sister also suffered from cerebral hemorrhage. He wanted to stay in Hong Kong for a few more months and he would leave for another country by the end of the year.

Grounds for judicial review

19.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).

20.The applicant did not identify any ground for the intended judicial review in Form 86, nor in his supporting affirmation dated 9 March 2020. What he said at the oral hearing are not valid grounds for judicial review at all.

Discussion

21.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).

22.Thus, despite that the applicant did not advance any valid ground for the intended judicial review, this court will still scrutinize the Board’s 2^nd Decision for any errors of law, procedural unfairness or irrationality.

23.The Board did consider the then provisions of section 37ZT(2) and (3) of the Immigration Ordinance, Cap 115, which required the Board to take account of: (a) the reasons stated in the application for late filing of the Notice and any documents relied on in support of those reasons; and (b) any other matters of fact within the knowledge of the Board. The Board may allow late filing of the Notice if it is satisfied that, by reason of special circumstances, it would be unjust not to allow the late filing of the Notice.

24.However, the applicant did not provide any information to explain the delay in filing the Notice. Thus, there was no reason stated in the application for the late filing for the Board to consider.

25.The Board then went on to consider the merits of the applicant’s case as set out in the Board’s 1^st Decision to see whether there might be any special circumstances by reason of which it would be unjust not to allow the late filing of the Notice. The Board found that the factual basis of the applicant’s case did not disclose any such special circumstances, and hence refused to allow the late filing of the Notice.

26.As held by the Court of Appeal, “any other relevant matters of fact within the knowledge of the Board” under the then section 37ZT(2)(b) of the Immigration Ordinance required the Board to take account of the merits of the appeal (see Re Khan Kamal Ahmed [2019] HKCA 377, Re Qasim Ali [2019] HKCA 430 and Re Villarosa Rhea Limbaga [2024] HKCA 95).

27.It is clear that the Board did consider the merits of the appeal and was entitled to conclude that there was no special circumstances to allow the late filing of the Notice.

28.Having rigorously examined the Board’s 2^nd Decision and the evidence with anxious scrutiny, this court could detect no errors of law, procedural unfairness or irrationality in the Board’s 2^nd Decision.

29.In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be a reasonably arguable claim which enjoyed 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

30.For reasons aforesaid, the Leave Application is dismissed.

Dated the 2^nd day of July 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