Shaikh Mohammed Feroz v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1084/2020

[2025] HKCFI 3239

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1084 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

b.  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 3 June 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 21 May 2020 (the “Board’s Decision”).

2.In the Form 86, the Applicant has named both the Board and the Director of Immigration (the “Director”) as proposed respondents and proposed interested parties. As it is trite that the Board should be the proposed respondent whereas the Director should be the proposed interested party, I make an order to amend the Form 86 accordingly on the court’s own motion.

3.An oral hearing was requested by the Applicant. It took place before me on 16 July 2025 (the “Hearing”) 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, if returned to India, he would be seriously harmed or even killed by an individual known as “Kumar” as the Applicant failed to repay a debt owed to Kumar.

Discussion

5.Leave applications for judicial review is intended to be a filtering process and elaborate reasons are not necessary (see Re Zunariyah [2018] HKCA 14, at §23). Therefore, I shall set out the reasons for my decision briefly below.

6.As repeatedly emphasised in appellate authorities, determination of the merits of a non-refoulement claim is essentially within the remit of the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them. The role of the court in judicial review is not to re-assess the non-refoulement claim. A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see e.g. 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.

7.It is also trite law that, an applicant, even if unrepresented, is required to properly identify the grounds of judicial review in the Form 86, and to fully and frankly disclose all material facts and potential legal answers, see: Ho Loy & Another v Director of Environmental Protection (HCAL 21/2015, 22 December 2016) per Chow J. (as he was then) at §142. However, in the Form 86 and his supporting affirmation, the Applicant did not provide any specific grounds in support of the Leave Application other than making a general assertion that his life would be in danger if he were to be returned to India.

8.Notwithstanding the lack of specific grounds in support of the Leave Application, I have considered the Board’s Decision in detail. 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.

9.Having applied applicable legal principles (§§9-23), the Board’s Decision was comprehensive with adequate reasons provided. In particular, the Board was plainly correct in finding that there was no evidence of any real risk of serious harm (§103) as there were serious issues with the credibility of the Applicant’s evidence:-

(1)  The Applicant was able to travel freely and regularly between Hong Kong and India between 2002 to 2007. Yet, he did not make any claim for non-refoulement (§§57-66). The Board also noted that on the Applicant’s evidence, Kumar had tolerated the debt during roughly the same period without subject the Applicant to any particularly harsh treatment (§75).

(2)  The Applicant’s case on the alleged loan by Kumar was found to be tenuous and there is no evidence of (i) the alleged loan from Kumar; (ii) alleged attempt by the Applicant to repay his debt to Kumar (§§53, 56, 66).

(3)  The Board also rejected the Applicant’s factual account that his former wife was sexually assaulted by Kumar as a result of the financial dispute between the Applicant and Kumar given his unsatisfactory evidence (§§52, 72-82).

10.Further, the Board was entitled to find that the Applicant can be relocated to other parts of India (§§85-91 of the Board’s Decision). The Applicant’s claim that Kumar would be able to locate the Applicant anywhere in the country and that the Indian authorities would turn a blind eye to the threats against him was no more than a bare assertion which was not supported by credible evidence. As noted in the Board’s Decision (§§90, 98), there were numerous cities where the Applicant as a Muslim can live safely.

11.The Board’s Decision satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational.

12.The Applicant requested an oral hearing. At the Hearing, the Applicant orally raised the further point that, since he got married in 2012 and now has a daughter who is diagnosed to be autistic and hyperactive, he wishes to remain in Hong Kong to take care of his daughter. Regrettably, even if I accept the veracity of his claim and that his family members are legally resident in Hong Kong, such matter does not assist the Applicant’s non-refoulement claim. As conclusively decided by the Court of Final Appeal in Comilang Milagros Tecson v Director of Immigration (2019) 22 HKCFAR 59 at §§38-72, a person who has no right to remain in Hong Kong cannot rely on the rights of his children or family (if any) for family unity as the Director is not required to take such factors into consideration in immigration matters by virtue of the reservation under s.11 of the Hong Kong Bill of Rights Ordinance (Cap 383).

13.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

14.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