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

HCAL 2296/2020

[2025] HKCFI 5415

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2296 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:- 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 23 November 2020 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against the decision made by the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office (the “Board”) on 12 November 2020 (the “Board’s Decision”).

2.In the Form, the Applicant 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 and 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 Leave Application. The hearing was originally scheduled to take place on 8 September 2025. Notice of Hearing was issued to the Applicant on 21 August 2025 at the address provided by the Applicant in the Notice of Change of Address filed on 23 May 2022. On 3 October 2025, the Court received the returned mail with the reason “refused 拒收”. Subsequent to the hearing, the Court was informed by the Immigration Department that the Applicant has provided another address to it in Yuen Long. However, the Applicant has not updated his address to the Court to date.

4.It is the duty of a litigant to give the court an address to which correspondence or notice can come to his attention in a timely manner. The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant (Re Hasmi Rizwan Imran [2018] HKCA 439, at §15).

5.Apart from the Notice of Hearing, on 4 September 2025, attempt was made to contact and remind the Applicant of the hearing by phone at the number provided by the Applicant on the Information Sheet. It was discovered that no such number was registered. On the same day, another attempt was made to contact and remind the Applicant of the hearing by phone at the number provided by the Applicant on Form No. 8. The call was however answered by a gentleman who said he knew the Applicant. The gentleman was then asked to remind the Applicant to attend the hearing.

6.Eventually due to the Tropical Cyclone Warning Signal hoisted on 8 September 2025, the hearing was adjourned to the next day, i.e. 9 September 2025. Attempt was again made to contact and remind the Applicant of the hearing on 9 September 2025 by the same phone number on 8 September 2025. However, the call was not answered.

7.The Applicant did not attend the hearing on 9 September 2025. As the Notice of Hearing was properly served at the address provided by the Applicant to the Court, I consider it appropriate to proceed with the Leave Application in the absence of the Applicant.

Background

8.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

9.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)

10.In the Form, the Applicant did not provide any grounds in support of the Leave Application. In the supporting Affirmation, the Applicant simply attached the Board’s Decision and the hearing bundle before the Board. No grounds were provided in support of the Leave Application.

11.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 was entitled to reject the Applicant’s claims based on its evaluation of the evidence and the reasoning provided (§§41-92 of the Board’s Decision). I do not see any errors committed by the Board. 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.

12.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

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

Dated the 13^th day of November 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