Samsudeen Mohamed Nizer Alias Samsudeen Mohmamed Nizer v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 418/2022

[2026] HKCFI 1707

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 418 of 2022

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 (Non-Refoulement Claims) Calvin Cheuk:    

1.   Form 86 be amended, naming the Torture Claims Appeal Board / Non-refoulement Claims Petition Office as the Putative Respondent and the Director of Immigration as the Putative Interested Party.

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

Observations for the Applicant:

Introduction

1.By a Form 86 filed on 1 June 2022 (the “Form”), the Applicant applied for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board”) dated 6 April 2022 (the “Board’s Decision”), which affirmed the decision of the Director of Immigration (the “Director”) dated 31 May 2017 (the “Director’s Decision”).

2.The Applicant named the “Petition Teams (Security Bureau)” as the proposed respondent and the Board as the proposed interested party. Pursuant to Order 20, rule 8 and/or Order 53, rule 3(6) of the Rules of the High Court (Cap 4A), I amend the Form on my own motion to name the Board as the putative respondent and the Director as the putative interested party.

3.The Applicant requested an oral hearing for the application. The hearing took place on 5 February 2026. The Applicant, however, did not appear.

Background

4.The Applicant’s background, the basis of the Applicant’s claims and the arguments the Applicant advanced were set out in detail in the Board’s Decision. It is not necessary for me to repeat the same here. The hyperlink to the Board’s Decision is included below for reference.[1]

Discussion

5.The applicable legal principles in this area 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 Board. Though in non-refoulement cases, the Court will adopt an enhanced standard in scrutinizing the decisions of the Board due to the seriousness of the issues at hand, the Court should not usurp the role of the Board. Assessment of the evidence, country of origin information materials, risk of harm, state of 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].

6.Further, in a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly (see Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015, 22 December 2016, at [142]).

7.In the Form and the supporting affirmation, the Applicant contended that:

(1)   The Board’s Decision was unfair;

(2)   He was not satisfied with the Board’s Decision; and

(3)   He still had problems in his country. His life would become unsafe if he was to go back.

8.In relation to the points at [7(1)] and [7(2)] above, the Applicant has not particularised, let alone demonstrated, how the Board acted unfairly or why he was not satisfied with the Board’s Decision.

9.As for the point at [7(3)] above, it is merely an attempt to re-argue the case that has been rejected by the Board claims (see, in particular, [221]-[242] of the Board’s Decision).

10.In the present case, the Board carefully considered the Applicant’s evidence. A hearing was conducted on 28 September 2018 and 26 August 2021. The Board’s Decision was comprehensive with adequate reasons. Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, I do not find any errors of law, procedural unfairness or irrationality in the same. The Board was entitled to come to the conclusions it did and reject the Applicant’s claims (see, in particular, [197]-[246] of the Board’s Decision). I am not satisfied the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with realistic prospects of success. See Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676, at [14]-[17].

11.As held in Re Zunariyah [2018] HKCA 14, at [23], leave application operates as a filtering process and there is no requirement or expectation to give elaborated reasons for my decision. It suffices for me to state that in reaching this decision, I have considered all the relevant documents and evidence available to me.

Conclusion

12.For the reasons above, I refuse the Applicant’s leave application and make the orders as set out above.

Dated the 26^th day of March 2026

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