Nathar Mohamed Sadik Ali v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 216/2020

[2025] HKCFI 2062

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 216 of 2020

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

Order by Deputy High Court Judge (Non-refoulement Claims) Teresa Wu:

(1)   Form 86 be amended, naming the Torture Claims Appeal Board / Non-refoulement Claims Petition Office and the Director of Immigration as the Putative Respondent and the Putative Interested Party respectively.

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

Observations for the Applicant:

Introduction

1.By Form 86 filed on 21 January 2020, the Applicant applies for leave to apply for judicial review (“the Leave Application”) of the decision of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) dated 8 January 2020 (“the Board’s Decision”) affirming the decision of the Director of Immigration (“the Director”) dated 9 July 2018 (“the Director’s Decision”), which rejected his non-refoulement claim on all applicable grounds (“the Grounds”) under the Unified Screening Mechanism (USM).

2.On my own motion, I have amended Form 86, correctly naming the Board and the Director as the proposed respondent and the proposed interested party respectively.

Background

3.The material facts of this case, including the Applicant’s personal background, the incidents alleged to show that he would be seriously harmed or killed in India, and the immigration and procedural history, etc. have been set out comprehensively in the Board’s Decision.  It is not necessary to repeat them all over again.  For completeness’ sake, reference can be made to the Board’s Decision, the hyperlink to which is included below[1].  Unless otherwise specified, I will also adopt the Board’s abbreviations and descriptions herein.

Discussion

4.I have considered the Board’s Decision with rigorous examination and anxious scrutiny, applying an enhanced standard as required by law owing to the seriousness of the issues involved.  I am satisfied that the Board had correctly set out the burden and standard of proof, the law and key legal principles relating to the Grounds under the USM, and observed a very high standard of fairness.

5.In gist, after going through all the evidence adduced by the Applicant, the Board found as follows:

(1)  The statements submitted by the Applicant with his claim forms provided very limited details and were insufficient to establish the facts of his claim.

(2)  As the interview with the Director was very brief and was “not effectively probative”, the Board had to question the Applicant in order to establish the facts of his claim.  His testimony could not have been “more incoherent, vague and plainly incredible”.  His account was “entirely different on key and material matters” and was “exceptionally vague”.

(3)  The Applicant was undoubtedly not “a witness of truth”.  Looking at all of these matters in the round, there was no area of the Applicant’s claim not affected by “serious indicators of negative credibility”.  It was so bad that “no credence can be attached to anything he has asserted, beyond his undisputed nationality”.

6.Consequently, the Board refused to accept that there was any Persecution Risk, BOR 2 Risk, BOR 3 Risk, or Torture Risk.

7.It is well-established that the role of the Court in a judicial review is not to provide a further avenue of appeal (see 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, etc.).  The Applicant has not shown any error of law, procedural unfairness, or irrationality in the decision of the Board that would warrant court intervention.  The assessment of evidence regarding the COI, risks of harm, state protection, and viability of internal relocation was primarily within the Board’s jurisdiction.  The Board was entitled to evaluate the available evidence and decide the weight to be given to it. 

8.I am not therefore satisfied that the Applicant’s intended application for judicial review of the Board’s Decision is reasonably arguable with any realistic prospects of success (see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676).

Conclusion

9.I accordingly make an order that the Leave Application be dismissed.

Dated the 11^th 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