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

HCAL 1122/2020

[2025] HKCFI 3690

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1122 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 the Applicant being absent in open court;

Order by Deputy High Court Judge (Non-refoulement Claims) Philips Wong:

1.  Form 86 be amended as follows:- (1) the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office be named as the Putative Respondent; and (2) 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 8 June 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”) dated 7 May 2020 (the “Board’s Decision”).

2.In the Form, the Applicant named the “Secretary of Justice Appeal on behalf of Director of Immigration” as the proposed respondent, and himself as the proposed interested party. As it is trite that the Board should be the proposed respondent whereas the Director of Immigration (the “Director”) should be the proposed interested party, I make an order to amend the Form on the court’s own motion.

3.In the Form and in the supporting Affirmation, the Applicant indicated that he wanted to apply for judicial review against both the Board’s Decision and the decision of the Director below.

4.The Director’s decision dated 28 August 2018 had been superseded by the Board’s Decision. The Director’s decision is not a decision susceptible to judicial review once an appeal to the Board had been pursued (see Re: Moshsin Ali [2018] HKCA 549, at §§31-45). Accordingly, in so far as the Applicant seeks leave to apply for judicial review against the Director’s decision, such application fails in limine and is dismissed.

5.The Applicant requested an oral hearing for the application. The hearing took place on 21 July 2025. Notice of hearing was issued to the Applicant in advance at the address provided by the Applicant. Attempts were also made to remind the Applicant of the hearing on 17 July 2025 and 21 July 2025 by phone at the numbers provided by the Applicant on the Information Sheet and on Form 8 but in vain. The Applicant did not attend the hearing. In the premises, I proceed to consider the Leave Application in the absence of the Applicant.

Background

6.The Applicant’s background, the basis of his claim and the arguments he advanced had been set out in detail 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

7.The applicable legal principles relating to application of this sort are well established. The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. Though in non-refoulement cases, the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, 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 and in the supporting Affirmation, the Applicant did not provide any grounds in support of the Leave Application.

9.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. The Board’s Decision was comprehensive with adequate reasons provided. The Board had thoroughly considered the Applicant’s claims and his evidence, and was entitled to come to the conclusion it did (§§35-68 of the Board’s Decision). The Board’s Decision satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational. 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.

10.Leave application of this sort is meant to be a filtering process and I am not expected to give elaborated reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23). Suffice for me to state that in reaching the decision, I have considered all the relevant documents before me.

Conclusion

11.In the light of the reasons provided above, I make an order that the Form be amended as described above and the Leave Application be dismissed.

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