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

HCAL 2333/2020

[2025] HKCFI 4435

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2333 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) Philips Wong:

1.  Form 86 be amended as follows:- 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 30 November 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 25 September 2020 (the “Board’s Decision”).

2.In the Form, the Applicant has named the Board as both the proposed respondent and 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 in an application of this sort, I make an order to amend the Form on the court’s own motion.

3.The Applicant requested an oral hearing for the application.  The hearing took place on 25 August 2025 and the Applicant attended in person.  The Applicant however indicated that he had nothing to say in respect of the Leave Application.

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.

Discussion

5.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)

6.In the Form, the Applicant did not provide any grounds in support of the Leave Application.  In the supporting Affirmation, the Applicant set out the grounds which can generally be summarized as follows:-

(1)  There was procedural impropriety because the Board had failed “to properly apply para 2 of the UN committee against Torture General Comment No.2 whereby satisfaction of a National states obligations to conduct sufficient due diligence requires that reforms and means of relief introduced must be effective in any event”.  The Applicant cited JKF CACV 103/2014 in support.

(2)  There was procedural impropriety because the Board had failed “to conduct sufficient inquiry into the relevant country of origin conditions” and had failed “to consider that [the Applicant] would face serious risk from [his] enemies who will harm [him] because of [his] political and statistical view which consider a serious matter for which he would definitely harm [him] upon refoulement”.

(3)  There was procedural impropriety or irrationality in that the Board had failed to provide reasons “for assessment of Lack of BOR 2 risk and/or sufficient basis to support conclusion of lack of BOR 2 and BOR 3 risk”.

(4)  There was error or misdirection in law in that the Board had failed “to take into account the considerations of psychological strain and threats to [the Applicant] personally or threats to [the Applicant] directly to kill [him]”.

(5)  There was procedural impropriety because the Board had failed to consider the Applicant’s fear that his enemies still fear for him.  The Applicant could not relocate to other places because they could easily trace him wherever in his country.

(6)  There was no sufficient basis to conclude that the Applicant and his family members would not be at risk of being subjected to torture and/or CIDTP (as defined below) upon refoulement.

7.I do not consider any of the above grounds meritorious.  I shall briefly state my reasons hereinbelow.

8.In relation to point (1), the torture claim under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the “Convention”) has now been incorporated in Part VIIC of the Immigration Ordinance (Cap. 115).  The torture claim was considered and rejected by the Director in the Director’s decision dated 26 January 2012, and there was no appeal to that decision (§2 of the Board’s Decision).  The torture claim was not under consideration in the Board’s Decision and this ground is accordingly misconceived. 

9.In relation to point (2), the Applicant’s criticism that the Board had failed to conduct sufficient inquiry relating to the COI materials is vague and lacks particulars.  The Board had plainly considered the relevant COI (§§71-87 of the Board’s Decision).  The Applicant has not explained what inquiry he alleged the Board ought to have made and which it had failed to do so.

10.In so far as the Applicant contended that the Board had failed to consider the risk the Applicant would allegedly face from his enemies, such contention is wholly devoid of merits.  The Board had comprehensively considered the evidence and dismissed the Applicant’s case. 

11.In relation to point (3), contrary to the Applicant’s contention, the Board had clearly considered and explained the basis of rejecting the Applicant’s claim under “BOR 2” and “BOR 3” (§§88-103 of the Board’s Decision). I see no errors committed by the Board in the evaluation of the evidence.

12.In relation to point (4), it is unclear precisely what “psychological strain and threats” the Applicant was referring to.  As mentioned above, the Board had considered the evidence and rejected the Applicant’s case.  The Board was entitled to come to that conclusion.  The Board had to and did in fact assess the evidence objectively.

13.The Applicant’s contention in point (5) is incomprehensible.  There was no allegation that the Applicant’s alleged enemies fear the Applicant, and such allegation would be contrary to the Applicant’s case.  If the Applicant meant his enemies are still looking for him, such contention is again unmeritorious. The Board had in fact comprehensively evaluated the evidence and concluded that the Applicant’s evidence is unreliable (§§88-99 of the Board’s Decision). 

14.In so far as the question of relocation is concerned, it should be noted that the Board did not make findings on this issue as the Board had found that the Applicant does not have a well-founded fear of persecution (§108 of the Board’s Decision). 

15.Finally, the Applicant’s contention in point (6) above is vague and lacks particulars.  I am satisfied that the Board was entitled to come to the conclusions it did based on the evidence and its analysis of the same.

16.In short, 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.  The Board’s Decision was comprehensive with adequate reasons provided.  In particular, the Board was entitled to find the Applicant’s case and evidence unreliable (§§88-99 of the Board’s Decision).  The grounds above should be considered in the light of such findings.  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.

17.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, as well as the grounds advanced by the Applicant.    

Conclusion

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

Dated the 23^rd day of September 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

[1] https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL002333_2020_files/the_Board's_Decision.pdf