Re Alam Sarfaraz

CACV 143/2025, [2025] HKCA 1011

On appeal from [2025] HKCFI 874

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 143 OF 2025

(ON APPEAL FROM HCAL NO. 3625 OF 2019)

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J U D G M E N T

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Hon K Yeung J (giving the Judgment of the Court):

A.  The appeal

1.This is an appeal against the decision of Deputy High Court Judge Teresa Wu (the “Judge”) given on 13 March 2025 ([2025] HKCFI 874) dismissing his application for leave to apply for judicial review.  The intended judicial review was in respect of a decision of the Torture Claims Appeal Board (the “Board”) dated 3 December 2019, which dismissed his appeal against the decision of the Director of Immigration (the “Director”) dated 13 September 2018 rejecting his non-refoulement protection claim.

2.The applicant’s appeal was scheduled to be heard on 23 October 2025.  Despite the directions made by the Court on 22 August 2025 and communicated to the applicant by letter of 25 August 2025 (the “Directions”), the applicant failed to lodge written submissions by the stipulated time.  Accordingly by [4] of the Directions, the hearing of the appeal was vacated.  The Court now deals with this appeal on paper. 

B.   Background

3.The applicant is a national of India.  He is now aged 39.  He had come to Hong Kong several times before his last entry as a visitor on 18 January 2017. He was granted permission to stay until 1 February 2017.  He overstayed. On 3 February 2017, he surrendered himself to the Immigration Department.  He lodged his non-refoulement claim by written signification on 20 March 2017. 

4.The basis of the applicant’s claim was set out at [6] of the Director’s decision, and [3] to [23] of the Board’s decision.  In gist, the applicant claimed that he was the target of certain members of the All India Trinamool Congress (“TMC”). TMC is the ruling party in West Bengal, India.  His parents were supporters of the Communist Party of India (Marxist) (“CPI(M)”).  He himself became its supporter in 2004.  He put up banners of the party on the street, and attended its rallies and public meetings.  He said that in late 2016, he witnessed a rape committed by 5 men.  They were members of the TMC.  He had seen them before in party rallies.  They had previously disallowed the CPI(M) people from putting up their party banners on the street.  He intervened and tried to stop the rape.  He was beaten up by those 5 men.  He reported the incident to the local police.  The police refused to investigate the crime.  The police instead accused the applicant of having committed the crime.  Since then, the applicant and his father have been subjected to threats and assault by this group of people.  He feared for his safety.  He had taken shelter in various places in India, which included Dharamtala, Mumbai and Kolkata.  He eventually left India on 17 January 2017 and came to Hong Kong.  He did so on the strength of his passport.

C.  The Director’s Decision

5.The applicant’s claim was made under the grounds of torture risk[1], BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4].  By his decision dated 13 September 2018, the Director rejected the applicant’s non-refoulement claim on all grounds.

D.  The Board’s Decision

6.The applicant appealed to the Board.  A hearing took place on 11 September 2019.  The applicant testified.  By its decision given on 3 December 2019, the Board dismissed his appeal.

7.In summary, the Board found material discrepancies amongst the documentary evidence and the applicant’s oral testimony, particularly as to the year in which the rape allegedly took place.  The discrepancies cast doubt upon the veracity of the applicant’s account of the incident and the subsequent alleged assaults and threats he claimed he experienced ([40] to [49]).  There was also no political element in the alleged conflict, hence no indication of state acquiescence ([52]).  On the basis of the Country of Origin Information (“COI”), the Board also assessed that state protection is available to the applicant, and that internal relocation to cities like Delhi and Mumbai is a viable option ([56] to [65]).  The Board concluded that the applicant had failed to establish a real risk pertinent to any of the applicable grounds.

E.  The Judge’s Decision

8.On 5 December 2019, the applicant filed a Form 86 and sought leave to apply for judicial review against the Board’s decision.  He did not in his Form 86 state any ground for seeking relief.  In his supporting affirmation, he only exhibited the documents in the bundle used during the hearing before the Board, the Board’s decision and the covering letter for the same.

9.The Judge heard the leave application on 12 February 2025.  By Form CALL-1 dated 13 March 2025, the Judge dismissed the application and gave her reasons at [4] to [9], as follows:

“4.   The requirement for leave to apply for judicial review operates to filter out unarguable challenges: see section 21K(3) of the High Court Ordinance, Cap. 4 and Order 53 rule 3(1) of the Rules of the High Court, Cap. 4A. The Applicant’s intended challenge of the Board’s Decision is obviously not reasonably arguable with any realistic prospects of success: see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676 and leave should be refused.

5.   In the present case, the Applicant has failed to identify his grounds of judicial review in Form 86 as required: see Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015 (22 December 2016) at §142.

6.   The Applicant has also breached his duty to make full and frank disclosure of all material facts known to him and potential legal answers to his claims: see Re Leung Kwok Hung, HCAL 83/2012 (28 September 2012) at §35. It is utterly inadequate for him to only exhibit copies of the Board’s Decision and the Hearing Bundle placed before the Board in his supporting affirmation in the hope that the Court may consider the matter afresh in the absence of any legal error. As has been repeatedly emphasized, the role of the Court in a judicial review is not to provide a further avenue of appeal. The Applicant has completely failed to meet the required standard for providing the Court with all relevant information and adequate assistance in the papers filed for the filtering process to be properly performed. The fact that he acts in person does not relieve him of the relevant duty nor provide answer for his non-compliance.

7.   I remind myself of the enhanced standard that should be adopted in scrutinizing the decision of the Board due to the seriousness of the issue at hand: see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14. After considering the facts identified by the Applicant, the Board assessed his credibility and made findings based on the evidence available (§§3-23, 26-32, 40-49), and also applying the relevant law and legal principles relating to the issues and the Grounds.

8.   As can be seen from the Board’s Decision, the Board had “great reservations” about the Rape, the Assault and the threats alleged by the Applicant to support his non-refoulement claim. The Board was “[the] most disturbed” by the “glaring discrepancies between the Information and [the Applicant’s] Testimony”, which led it to conclude that the Applicant was “incredible” and to refuse to accept his case. The Board’s discussion and consideration of the different grounds under the USM were set out in inter alia the following paragraphs in the Board’s Decision: (i) Torture Risk (§§50-53); (ii) BOR 2 Risk (§§70-72); (iii) BOR 3 Risk (§§54-65); and (iv) Persecution Risk (§§66-69).

9.   The Applicant is unable to show any errors of law committed by the Board or that there was any procedural unfairness or irrationality in the Board’s Decision. 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.  The Court will not usurp the role of the Board or intervene by way of judicial review unless there are sufficient public law errors or grounds: see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.”

F.  Grounds of appeal

10.By notice of appeal dated 20 March 2025, the applicant appealed against the Judge’s decision.  He stated therein that “the grounds of this appeal are that the gravity of my circumstances have noted [sic.] been weighed or realized by both putative Respondents while considering my non-refoulement claim.  I should be given an opportunity to plead my case properly.”  On the same day, he also filed a supporting affirmation, but did not therein elaborate on the grounds of appeal.

G.  Our reasons for judgment

11.The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.  In summary, 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 and 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 or procedural unfairness or irrationality in the decision of the Board.

12.Applying the established legal principles set out above, we are of the view that the appeal has no merit.  Our reasons are as follows:

(1)   The complaint in the notice of appeal (as to the Board’s failure to give weight to his circumstances) is vague and devoid of particulars. The applicant has failed to identify how and in what ways the alleged failure impacted upon the Board’s findings and conclusion.  Quite the contrary, the Board had in fact carefully considered and analysed the applicant’s evidence on the alleged rape, the alleged subsequent threats and harm from members of the TMC, and the relevant COI.  The Board assessed that the applicant’s evidence was incredible, and concluded that he had failed to establish any risk of harm as claimed. Those were assessment and conclusion which the Board was entitled to make;

(2)   The applicant had been afforded the opportunity to present his case before the Board.  He testified.  He was given the opportunity to clarify various aspects of his claim ([25] to [32] of the Board’s decision).  There is no basis for him to request another “opportunity to plead my case properly”;

(3)   Further, the applicant has failed to identify any error in the Judge’s decision.  The Judge has scrutinised the Board’s decision.  For those reasons set out in her decision, she found no proper basis to disturb it. We have separately considered the Board’s decision.  Likewise, we do not discern any legal error, irrationality or procedural irregularity.  We agree with the Judge that there is no proper basis for disturbing the Board’s findings and conclusions;

(4)   The applicant’s intended judicial review has no reasonable prospect of success.

H.  Order

13.For the above reasons, we dismiss this appeal.

The Applicant, unrepresented, acted in person.