Saif Ur Rehman v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 195/2021

[2025] HKCFI 5623

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 195 of 2021

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 date of the decision in respect of which relief is sought be amended to 25 January 2021.

2.  The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.By Form 86 filed on 22 February 2021 (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 26 October 2021. The date of the Board’s decision stated on the Form was clearly a typo, as the Board issued a decision relating to the Applicant’s non-refoulement claim on 25 January 2021 instead (the “Board’s Decision”). Accordingly, I make an order to correct the date of the decision on the Form.

2.The Applicant requested an oral hearing for the Leave Application. The hearing took place on 20 October 2025 but the Applicant did not attend the hearing. Notice of Hearing was issued to the Applicant on 2 October 2025 at the address provided by the Applicant on the Form. The Immigration Department has also subsequently confirmed the said address to be the Applicant’s latest address on record. On 16 and 17 October 2025, attempts were made to contact and remind the Applicant of the hearing by phone at the numbers provided by the Applicant on the Administrative Form and on Form No. 8 but in vain. On 14 November 2025, the Court received the returned Notice of Hearing, indicating that the address was incomplete and so the Notice of Hearing could not be successfully served.

3.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).

4.As the Notice of Hearing was issued to the Applicant at the address provided by the Applicant, I consider it appropriate to proceed with the Leave Application in the absence of the Applicant.

Background

5.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

6.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 of Immigration (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)

7.In the Form, the Applicant did not provide any grounds in support of the Leave Application. In the supporting Affirmation, the Applicant simply exhibited the Director’s decision dated 26 October 2018.

8.The Director’s said decision had already been superseded by the Board’s Decision. The Director’s decision is not susceptible to judicial review once 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 in relation to the Director’s decision, the application fails in limine and is dismissed.

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 was entitled to come to the conclusions it did and reject the Applicant’s claims (§§53-86 of the Board’s Decision). This is particular so given that the Applicant’s claim was based on his bare assertion (§59 of the Board’s Decision). I do not see any errors committed by the Board in the reasoning. 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.

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

Dated the 20^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