Shoukat Mehmood v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1587/2022

[2026] HKCFI 3213

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1587 of 2022

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 oral submissions by the Applicant in open court;

Order by Deputy High Court Judge (Non-refoulement Claims) Philips Wong:

1.  Form 86 be amended as follows:- the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office be named as the only Putative Respondent; and (2) 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 30 December 2022 (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 9 December 2022 (the “Board’s Decision”).

2.On the Form, the Applicant named both the Director of Immigration (the “Director”) and the Board as the proposed respondents. The Applicant further named both the Board and the Immigration Department as the proposed interested parties. As it is trite that the Board should be the proposed respondent whereas 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 took place on 11 May 2026 and the Applicant attended in person. At the hearing, the Applicant however indicated that he had nothing to say in respect of the Leave Application, despite having requested the oral hearing himself.

Background

4.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[1] is included below for reference.

Discussion

5.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 or procedural unfairness or irrationality in the decision of the Board. (See Nupur Mst v Director of Immigration [2018] HKCA 524, at §14)

6.The Applicant did not provide any grounds on the Form in support of the Leave Application.

7.In the supporting Affirmation, the Applicant made a number of allegations in respect of the Board’s Decision. Some of the factual information stated in the Affirmation is incorrect, whilst some of the grounds put forward are difficult to comprehend. I shall deal with those allegations in turn briefly hereinbelow.

8.First, in the Affirmation, the Applicant seemed to suggest that apart from the Board’s Decision, he also intended to seek leave to apply for judicial review in respect of the Director’s decision dated 29 December 2021 (the “Director’s Decision”) (§§7 & 10 of the Affirmation). The Director’s 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.Second, the Applicant complained about the lack of legal assistance (§§8-9, 12 of the Affirmation). The Court of Appeal has repeatedly held that neither the high standard of fairness laid down in Secretary for Security v Sakhevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 2007 prescribed that a claimant under Convention Against Torture (CAT), or a claimant under Articles 2 or 3 of Section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383) or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Ahmed Syed Rafiq [2018] HKCA 178, at §22. In the present case, the Applicant was legally represented in the initial stage (§2 of the Board’s Decision). The Applicant had further been advised by the Duty Lawyer that there were no merits for appeal against the Director’s Decision (§8 of the Affirmation). Despite that, the Applicant insisted on proceeding with the appeal before the Board. Accordingly, I fail to see how the Applicant can reasonably complain about the lack of legal assistance before the Board.

10.In any event, the Applicant was given a fair opportunity to present his case in the hearing before the Board on 29 August 2022 and 2 September 2022, but his only submission was to ask the Board to review his file and do him a favour (§§8-9 of the Board’s Decision). I do not find anything amiss arising from the alleged lack of legal representation in the process before the Board. I also note that at the hearing held before the Board, the Applicant did not raise this “lack of legal assistance” argument.   

11.Third, the Applicant complained about the lack of translation and language assistance (§§8-9, 12-13, 15, 17 of the Affirmation). In Re Karamjit Singh [2018] HKCA 460, the Court of Appeal adopted the rationale of the Court of First Instance that it could not have been the intention of any authority laying down the principle of a high standard of fairness that the principle would include provision of interpretation service at any time a claimant desired or required. It must be borne in mind that it was the Applicant’s choice to come to Hong Kong where the official languages are Chinese and English. In the circumstances, he has to live with or cope with his language disability. He cannot expect to have the luxury of any documents to be fully translated into his first language for his benefit. In any event, I note that all the court documents (the Form and the supporting Affirmation) were all written in English. This indicates either the Applicant is familiar with the English language or he had access to, or was able to seek, such language assistance as he may require. There is no evidence to suggest that there was procedural unfairness in this regard.

12.In so far as the hearing before the Board is concerned, the Applicant was assisted by an interpreter (§25 of the Board’s Decision). The Applicant did not complain about the lack of language assistance in the hearing before the Board. Again, there is no evidence to suggest that there was procedural unfairness in the hearing before the Board.

13.The Applicant then alleged that the Board’s Decision was not translated to him in his first language such that he could not understand the reasons for rejecting his claims (§§12-13, 17 of the Affirmation). Such contention is unmeritorious, and I refer to the points made in §11 hereinabove. Further, if the Applicant truly does not understand the reasons for rejecting his claims in the Board’s Decision, it is puzzling how the Applicant can now claim the Board’s Decision to be erroneous in the Leave Application. I also do not see any unfairness in that the Board’s Decision was written in English, as contended by the Applicant.

14.Fourthly, in so far as the Applicant complained that the Board did not provide adequate reasons in the Board’s Decision on the evaluation of the evidence (§14 of the Affirmation), such contention is plainly unmeritorious. The Board had explained in detail why it rejected the Applicant’s claims (§§27-37 of the Board’s Decision).

15.Fifthly, the Applicant complained that the Board did not give him an opportunity to clarify his case (§16 of the Affirmation), this is again unmeritorious. The Applicant was given full opportunity to present and supplement his case at the hearing on 29 August 2022 and 2 September 2022 before the Board, but he had failed to do so (§9 of the Board’s Decision).

16.Having fully considered the Board’s Decision. 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 was entitled to come to the conclusions it did (§§23-46 of the Board’s Decision). The Board’s Decision satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational. There is no basis to say that the Board had failed to assess the Applicant’s claims properly.

17.In the premises, I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success. Accordingly, I refuse to grant leave for judicial review.

18.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, as well as the grounds advanced by the Applicant.

Conclusion

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

Dated the 5^th day of June 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