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

HCAL 1675/2025

[2025] HKCFI 4278

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1675 of 2025

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

Order by Deputy High Court Judge K.W. Lung:

1.   The extension of time for the application for Judicial Review be refused; and

2.   The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 1 November 2024 of the Torture Claims Appeal Board (“the Board’s Decision”).  His application is late.  His application shall not be later than 3 months from the date of the Board’s Decision[1], which expired on 1 February 2025.  His application was filed on 24 July 2025, which is late for over 5 months.  This issue will be dealt with below. 

2.The applicant did not ask for a hearing. 

The applicant

3.The applicant is a national of India. He came to Hong Kong as a visitor on 23 July 2023. He overstayed and was arrested by police.  He was referred to the Immigration Department where he lodged a non-refoulement claim on the basis that, if refouled, he will be harmed or killed by his creditor, Nazam, because he was unable to repay his debt. 

4.According to the applicant, he had borrowed 50 Lakhs Indian Rupees from Nazam for his construction project, which failed because a worker died of an accident.  Nazam demanded repayment of the loan and had sent people to kidnap him to his home where those people punched him on his back and held his neck. They threatened to break his arms and legs if he failed to repay the loan.  He fled to Hong Kong. 

5.Details of the applicant’s story can be found in the Board’s Decision.  See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001675_2025_files/the_Board's_Decision.pdf.

The Director’s Decision

6.The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”). 

7.The Director refused the applicant’s claim for the reason that it was unsubstantiated.  Besides, state protection will be available and internal relocation is viable, which will mitigate or neutralize the risks. (“the Director’s Decision”)  

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 21 October 2024, the Board conducted an oral hearing. He had given oral evidence and answered the Board’s questions. 

9.Having considered the applicant’s evidence, the Board had made the finding of the facts below:

(1)  this case is clearly a case of private loan between two citizens; [34]

(2)  the threats were merely means to pressurize him to repay the loan without any serious intention to carry out the threats; [39]

(3)  the treatment as alleged does not fall within the meaning of “torture” under section 37U(1) of the Ordinance; [40] and

(4)  the applicant failed to establish that there were substantial grounds for believing that he would be subjected to torture if he was sent back to India. [42]

10.For the reasons above, the Board dismissed his appeal and affirmed the Director’s Decision. 

Application for leave to apply for judicial review of the Board’s Decision

11.The applicant has filed Form 86 dated 24 July 2025 for leave to apply for judicial review of the Board’s Decision. 

12.The applicant has raised the grounds below in support of his application. 

(1)  The Board’s Decision is unfair and unreasonable as it did not take into account of his right to life. 

(2)  The Board had placed excessive reliance on the country of origin information without regard to his personal background and experience. 

(3)  Procedural impropriety and unfair assessment: the Board had unreasonably demanded him to answer questions.  This was irrational. 

(4)  The Board did not provide him with sufficient time to prepare for the hearing. 

(5)  The Board’s Decision does not contain all necessary details of his claim. 

DISCUSSION

13.As mentioned in paragraph 1, this application is late.  In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted.  I shall consider the merits of the applicant’s case. 

14.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.  

15.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and 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 or procedural unfairness or irrationality in the decision of the Board.”

16.For the reasons under paragraph 12, grounds (1), (2), (3) & (5) are his bare assertions or opinions without any evidence in support.  They are not valid to challenge the Board’s Decision.[2] From the Board’s Decision, the applicant did not raised the issue of insufficiency of time to prepare his case for the hearing.  He has not pointed out what evidence he had not produced to the Board because of insufficient time for his preparation. 

17.Therefore, there is no valid reason to challenge the Board’s Decision from the applicant. 

18.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision. 

DISPOSITION

19.I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application. 

Dated the 8^th day of October 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