Khalifa Abdul Nassor v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL906/2020

[2025] HKCFI 2922

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 906 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) Val Chow:

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 14 May 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”) which was stated in the Form to be purportedly dated 7 May 2020 (the “Board’s Decision”).

2.In the Form, the Applicant has named both the Board and the Immigration Department as the proposed respondents.  As it is trite that the Board should be the proposed respondent whereas the Director of Immigration (the “Director”) should be the putative interested party, I make an order to amend the Form accordingly on the court’s own motion.

Background

3.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

4.Upon perusal of the Board’s Decision, it was in fact made on 11 August 2020 after a hearing personally attended by the Applicant on 3 August 2020.  The Applicant’s Notice of Appeal/Petition against the decision of the Director was only received by the Board on 8 May 2020. The reference in the Form to the Board’s Decision being made on 7 May 2020 is erroneous.

5.Hence, when the Leave Application was filed on 14 May 2020, it was premature as the Board’s Decision was not yet made at the time.

6.In any event, as I shall explain below, any challenge against the Board’s Decision is unmeritorious.

7.The applicable legal principles relating to this type of applications are well established.  The judicial review is not a further avenue of appeal.    Though in non-refoulement cases, the Court will adopt a higher standard in scrutinising the decision of the Board having regard to the gravity of the matter, 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).

8.In the Form, the Applicant did not provide any grounds in support of the Leave Application. 

9.In the supporting Affirmation filed on 14 May 2020, the Applicant simply said that he did not agree with the decision of the Director and the Board and that his life would be in danger if he returns to Tanzania.

10.I have considered the Board’s Decision in detail.  I do not find any error of law, procedural unfairness or irrationality and the Applicant has not 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. 

11.The Board’s Decision was comprehensive with adequate reasons provided. In particular, I cannot find any basis to challenge the Board’s finding that there is no evidence of any real risk of harm, given that the Board has found the Applicant’s claim of the danger he faced in Tanzania to be incredible (§§23, 27-38 of the Board’s Decision). 

12.Further, the Applicant has not advanced any argument to challenge the Board’s finding that the Applicant may relocate to other parts of the country to live a relatively normal life (§§59-61 of the Board’s Decision). The Board was entitled, and indeed correct, to find that the Applicant can relocate to other parts of the country.  The Board’s Decision satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational. 

13.In conclusion, leaving aside the point that the Leave Application was premature, I am not satisfied that any challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success. 

14.Accordingly, I refuse to grant leave for judicial review.

15.Leave application of this sort is intended to be a filtering process and elaborate reasons are not necessary (see Re Zunariyah [2018] HKCA 14, at §23).  In reaching the decision, I have considered all the relevant documents before me, as well as the grounds advanced by the Applicant with anxious scrutiny.

Conclusion

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

Dated the 15^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