Abade Mehdi v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 297/2023

[2025] HKCFI 3635

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 297 of 2023

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 counsel for the Applicant in open court;

Order by Deputy High Court Judge Levy:  

1.  Leave is granted to the applicant to issue a judicial review application against the Board’s Decision.

2.  The applicant shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.

3.  Costs be in the cause of the proceedings, and the applicant’s own costs be taxed in accordance with the Legal Aid Regulations.

A.  Introduction

1.By a “Notice of application to apply for leave to judicial review” in the prescribed Form 86 filed on 27 February 2023, 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 22 February 2023 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 22 June 2022 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on all applicable grounds. The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2023/HCAL000297_2023_files/the_Board's_Decision.pdf

2.The applicant was granted legal aid and later assigned counsel respectively on 25 November and 13 December 2024. On 15 June 2025, the court granted leave to the applicant to amend his Form 86. Before the hearing on 22 July 2025, the applicant had amended his Form 86 (“Amended Form 86”) and lodged hearing bundles (“HB”) together with written submissions (“Skeleton”) and the list of authorities of his assigned counsel, Mr Geoffrey Yeung.

3.The basis of the applicant’s claim is that he would be harmed or killed by members of a “secret military service”, which was established in 1992, and is part of the Algerian Army. 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.

B.  The applicant’s grounds of review

4.In the Amended Form 86, the applicant only raised one ground for the Leave Application – the Board’s failure to make proper investigation and assessment of the scars (“Scars”) resulting from the abduction incident in 2016 (“Abduction Incident”).

C.  The Scars

5.To put the applicant’s ground of the review in context, it will therefore be necessary to discuss the genesis of the Scars and of their relevance in the present case. According to the applicant’s evidence given at the hearing before the Board (see the Board’s Decision at §27), the Abduction Incident took place in 2016, during which two men took him into a forest and assaulted him. Those men told him that “they were from the authorities”. The applicant passed out after they hit him the first time. He only regained consciousness the next day. He pointed out the Scars to the adjudicator for the Board (“Adjudicator”) stating that they resulted from their beating.

D.  The applicable principles

6.In Section D of the Skeleton, Mr Yeung submitted that in determining a non-refoulement, the existence of any physical evidence of past torture or ill-treatment, such as scars, are relevant or important to the question of whether there exists a real risk of torture or ill-treatment citing the “Istanbul Protocol”[1] (“Istanbul Protocol”) at §393:

“… To the extent that physical evidence of torture or ill-treatment exists, it provides important confirmatory evidence that a person has been tortured or ill-treated. However, the absence of such physical evidence should not be construed to suggest that torture or ill-treatment did not occur, since such acts of violence against persons frequently leave no permanent marks.”

7.Since an appeal before the Board is a consideration of the applicant’s claim de novo[2], high standards of fairness require the Board to adopt a duty of joint endeavour[3] to properly investigate the applicant’s claim that the Scars had resulted from past torture or ill-treatment.

8.The duty to investigate encompasses a consideration of medical evidence, and absent of which, the exercise of the Board’s power to require the applicant to undergo a medical examination of the scars under s.37ZC of the Immigration Ordinance[4]: LB v TCAB[5] .

9.A failure to properly investigate and consider medical evidence such as scars may constitute reviewable error: LB v TCAB (supra.); G v TCAB[6] and YS v TCAB[7].

10.Once it is apparent to a Board that a claimant is scarred, the Board is required to find out how the scar(s) have been caused: RR (Challenging Evidence) Sri Lanka[8].

E.  The Board’s Decision

11.The Board accepted that during the 10 years’ insurgency and civil war that started in 1992, the Algerian military and security authorities were involved in the harsh suppression of Islamist terrorism, and the Board concluded that the applicant’s factual account was broadly plausible. However, the Board found that the applicant’s accounts of police or security personnel were vague. The Board concluded that most of the applicant’s evidence about the adverse interaction with and attention from the security forces was unreliable.

12.At §43 of the Board’s Decision, the Board did not accept the occurrence of the Abduction Incident and the Scars arising from the alleged torture in the Abduction Incident. The reason was that the applicant only raised the Abduction Incident for the first time at the hearing. The Board considered that the evidence about the Abduction Incident was vague and lacked detail. The Board then concluded that the applicant was not at risk of harm should he return to Algeria, and dismissed the appeal.

F.  Discussion

13.It is trite that a leave application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[9] It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

14.In its credibility evaluation, the Board did not reject the applicant’s evidence wholesale. It in fact accepted that the applicant might have had some adverse interaction with the security forces in the earlier period of the civil war, which started in 1992. However, the Board found the applicant’s evidence on other incidents unreliable. It particularly rejected the Abduction Incident for the reason that it had not been previously raised, and the applicant’s evidence for having been placed on a database for the first time in 2017 after his departure from Algeria. In evaluating the applicant’s evidence on past ill-treatment, the Board stated that it had “noted that [the applicant] had never experienced any harm apart from the claimed abduction” (Board’s Decision §30).

15.In the circumstances, the credibility assessment regarding the Abduction Incident forms a very crucial aspect of the applicant’s appeal as it is inextricably linked with whether there existed any risk of harm. At the hearing, the applicant had repeatedly referred to the wounds and the scars at the lip and the forehead, and pointed them out to the Board[10]. The Board had also noted the apparently visible Scars on the applicant’s body (see Board’s Decision §20). The Board however had failed to conduct a proper examination of the Scars and simply brushed aside potentially important corroborating evidence.

16.According to the applicable principles discussed in Section D above, the Board has therefore failed to apply the high standards of fairness in properly investigating the Scars. As Mr Yeung has correctly submitted, it is presently unclear whether the Scars, if properly investigated and considered, could have made a difference to the applicant’s case: Re JKF (supra.). Pertinently, in my view, the Board has failed to make any finding on the Scars as to whether they existed, and if so, how they were caused.

17.I agree with Mr Yeung that the question of whether a proper examination of the Scars would change the outcome of the applicant’s appeal is immaterial. It is however the most fundamental duty for the Board to consider all the evidence. Relevantly in the present case, the evidence of the Scars might be capable of plugging the long time gap, which the Board has adversely commented on (see Board’s Decision §28), including the Board’s adverse finding on the evidence regarding the applicant having been placed on a national “database”.

18.For the above reasons, it seems at least reasonably arguable that the Board’s Decision is wrong at law, tainted by procedural unfairness, and that it does not meet the required high standards of fairness.

G.  Conclusion

19.In the premises, and for all the given reasons, I am of the view that the applicant’s Leave Application is reasonably arguable on those grounds stated above, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

20.Accordingly, I grant leave to the applicant to apply for judicial review of the Board’s decision, and direct that he shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.

H.  Orders

21.Leave is granted to the applicant to issue a judicial review application against the Board’s Decision.

22.The applicant shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.

23.Costs be in the cause of the proceedings, and the applicant’s own costs be taxed in accordance with the Legal Aid Regulations.

Dated the 22^nd 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