Iqbal Mohammed Asif v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3470/2019

[2025] HKCFI 3288

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3470 of 2019

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 Levy:

1.   The Form 86 is amended on the court’s own motion.

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

Observations for the Applicant:

Introduction

1.By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 22 November 2019, the applicant applied for leave to apply for judicial review (“Leave Application”).  The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 7 November 2019 (“Board’s Decision”) dismissing the applicant’s appeal against a decision of the Director of Immigration (“Director”) dated 27 July 2018 (“Director’s Decision”) rejecting the applicant’s non-refoulement claim on all applicable grounds except torture risk[1]. Torture risk was covered by a prior decision of the Director dated 12 November 2013.  The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003470_2019_files/the_Board's_Decision.pdf

2.In his Form 86, the applicant named the Board and the Director as the proposed respondents and stated an address as the interested party.  As the Board should have been the proper respondent and the Director the interested party, the Form 86 will be accordingly amended on the court’s own motion.

3.The basis of the applicant’s claim was that he would be harmed or killed by his deceased girlfriend’s family who blamed him for her death.  The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them.  Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

4.As the applicant had requested a hearing of the Leave Application, this court held a hearing on 18 July 2025.  The applicant attended the hearing in person.  After having heard from him, this court informed him that the decision would be reserved, and be sent to his updated address.

Discussion

5.A leave application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[2]  It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

6.In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[3], and further to make full and frank disclosure of all material facts to be verified by an affidavit.   

7.In his Form 86 and supporting affirmation, the applicant did not raise any grounds for judicial review.

8.At the hearing, this court asked the applicant whether he had any grounds he wished to submit in support of the Leave Application.  The applicant stated that he had nothing to say.  The court then reminded the applicant that he had not raised any grounds in the papers that he filed and asked him if he wanted to provide any grounds orally.  The applicant still stated that he had nothing to say.

9.As the Courts have repeatedly stated, 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.[4]  In the present case, the Board rejected the claim because it found that the applicant was not a witness of truth, due to significant inconsistencies and unconvincing aspects in his evidence, to which the Board drew his attention but he was unable to provide a satisfactory explanation.  The Board thus rejected the core of his claim.  Though the Board made no findings as to state protection and internal relocation in assessing whether the applicant might face future risk of harm in India as a Muslim, the Board considered the country of origin information which indicated that overall, Muslims faced a low risk of societal discrimination and violence.  Thus, the Board concluded there was no real risk of harm.  These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

10.Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness in the Board’s Decision.  The applicant has provided no grounds in support of the Leave Application whether on paper or at the hearing. He has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision.  The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[5].

Orders

11.The Form 86 is amended on the court’s own motion.

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

Dated the 4^thday 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