Mohammed Rahis v. Torture Claims Appeal Board

HCAL 606/2021

[2025] HKCFI 6469

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 606 OF 2021

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 Bruno Chan:

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

Observations for the Applicant:

1.The Applicant is a 51-year-old national of India who last arrived in Hong Kong on 8 August 2005 as a visitor with permission to remain as such up to 12 August 2005 when he did not depart and instead overstayed, and was arrested by police on 9 April 2007. After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to India he would be harmed or killed by his wife’s family over their personal disputes, and for which he completed a Torture Claim Form (“TCF”) and attended a screening interview before an immigration officer with legal representation from the Duty Lawyer Service (“DLS”).             

2.By a Notice of Decision dated 18 September 2012, the Director of Immigration (“Director”) rejected the Applicant’s claim under risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”) after taking into account of all the relevant circumstances of his claim and upon finding that his alleged problem with his wife’s family was a private dispute between them only and without any evidence of any alleged threats or torture being inflicted by his wife’s family on him, nor was there any evidence of any state or official connection or involvement that the Applicant failed to establish that there was any substantial ground for believing that he will be subjected to torture upon his return to India that his claim failed on the applicable ground.

3.The Applicant did not lodge any appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but on 3 April 2013 he raised a non-refoulement claim for protection on the ground of Cruel, Inhuman or Degrading Treatment or Punishment (“CIDTP Claim”), and upon the commencement of the Unified Screening Mechanism (“USM”) on 3 March 2014, his non-refoulement claim was to be assessed on all the remaining applicable grounds other than torture risk including risk of his absolute and non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) including right to life under Article 2 (“BOR 2 Risk”) being violated, risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principles under Article 33 of the 1951 Convention Relating to the Status of Refugee (“Persecution Risk”).

4.Accordingly on 10 October 2018 a briefing session was conducted with the Applicant by an immigration officer when he was given a Supplementary Claim Form (“SCF”) with instructions to complete and return to the Immigration Department by 11 December 2018, as well as a referral to DLS for legal representation, but the Applicant never returned the SCF as required or at all, whereupon his non-refoulement claim was accordingly treated as withdrawn as on 11 December 2018, and that he was so informed.

5.Some 9 months later on 2 September 2019 the Applicant in writing requested to re-open his claim by way of a written signification in which he stated that he cannot go back to India as he still had problem there, and that he now lived with his family in Hong Kong.

6.In pursuance of Section 37ZG (3) of the Immigration Ordinance, the Director by a letter dated 18 September 2019 required the Applicant to provide sufficient evidence in writing to satisfy an immigration officer that he had exercised all due diligence but failed to return his completed SCF as required or at all due to circumstances beyond his control.

7.Despite repeated reminders from the Immigration Department, the Applicant failed to do so, nor did he attend the subsequently scheduled interview before an immigration officer without any valid explanation, and accordingly the Director by a Notice of Decision dated 29 January 2020 refused his request to re-open his claim, with an advice that if he was aggrieved by such decision that he may within 14 days lodge an appeal to the Board against the Director’s decision.

8.The Applicant however never did, and instead some 1 ½ years later on 3 May 2021 he filed a Form 86 in these proceedings for leave to apply for judicial review of the Director’s decision, and no ground for seeking relief was given in his Form or in his supporting affirmation of the same date to which he just attached a copy of his TCF previously submitted for his torture claim in 2007.        

9.As such, and in the absence of any appeal by the Applicant to the Board against the Director’s refusal to re-open his non-refoulement claim under Section 37ZR (a) of the Immigration Ordinance, I do not find any legal or procedural basis for him to instead seek leave to apply for judicial review of the Director’s decision, and accordingly I dismiss his application.

Dated the 31^st day of December 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