Makhloufi Ali v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 805/2020

[2025] HKCFI 3074

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 805 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 on the court’s own motion as follows:-

a.  the Torture Claims Appeal Board/Non-refoulement Claims Petition Office be named as the Putative Respondent; and

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

Observations for the Applicant:

Introduction

1.By Form 86 filed on 4 May 2020 (the “Form 86”), 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 27 March 2020 (the “Board’s Decision”) which affirmed a decision by the Director of Immigration dated 23 August 2018 which rejected the Applicant’s non-refoulement claim on all applicable grounds.

2.In the Form 86, the Applicant has erroneously named himself as the proposed respondent. I make an order to amend the Form 86 accordingly on the court’s own motion to name the Board as the putative respondent.

3.The oral hearing of the Leave Application (“Hearing”) took place before me on 14 July 2025 and the Applicant attended in person.

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. In short, the Applicant claims that his life would be in danger if he returns to Algeria as he had engaged in an intimate relationship with a female (the “Romantic Partner”) and that relationship was opposed by the Romantic Partner’s family members because the Applicant belongs to the Berber (also known as Amazigh or Kabyle) indigenous ethnic group.

Discussion

5.The general principles are well established. The judicial review is not a further avenue of appeal. Though in non‑refoulement cases, the court will adopt a high standard of fairness to review the decision of the Board with anxious scrutiny due to the seriousness of the issue at hand, the court should not usurp the role of the Board. Matters of fact such as 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. 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.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).

7.In the Form 86 and his affirmation in support, the Applicant did not provide any grounds in support of the Leave Application.

8.At the Hearing, the Applicant said he had nothing else to add for his application.

9.Notwithstanding the Applicant’s failure to put forward specific grounds of review, I have considered the Board’s Decision in detail. I do not find any error of law, procedural unfairness or irrationality. There is nothing to indicate that the Board had failed to take into account any relevant matters or that it had taken into account irrelevant matters.

10.In my judgment, the Board was plainly correct in finding the following after a detailed review of the evidence:-

(1)  There is no evidence of any real risk of any form of serious harm, as the Board found that the Applicant has in substance fabricated the factual basis of his claim in light of the various inconsistencies and his unsatisfactory evidence (§§100-113 of the Board’s Decision).

(2)  Having considered relevant COI, it was accepted by the Board that the Applicant may be subject to some low level of discrimination by reason of his ethnicity, however, the Board was not satisfied that such discrimination would reach the requisite minimum level of severity of harm (§§115-120 of the Board’s Decision).

11.In short, 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.

Conclusion

12.In the premises, I make an order that the Form 86 be amended as described above and the Leave Application be dismissed.

Dated the 1^st day of August 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