MOHAMMAD NADEEM alias NADEEM SARWAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 509/2020

[2025] HKCFI 2041

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 509 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;

1.  Form 86 be amended as follows:- (1) the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office be named as the 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 6 April 2020 (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 4 March 2020 (the “Board’s Decision”).

2.  In the Form, the Applicant has named the Immigration Department 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, I make an order to amend the Form accordingly on the court’s own motion.

3.  The Applicant requested an oral hearing for the application.  The hearing took place on 6 May 2025.  Notice of hearing was issued to the Applicant in advance.  According to the record, the Applicant was also reminded to attend the hearing by phone on 30 April 2025.  Despite the aforesaid, the Applicant did not attend the hearing.

Background

4.  The Applicant’s background, the basis of his claim and the arguments he advanced had been set out in details 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

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

6.  In the Form, the Applicant did not state any grounds in support of the Leave Application.  In the supporting Affirmation, the Applicant simply said the Board’s Decision is not fair.  No particulars have been provided in support of such general and vague assertion.     

7.  I have considered the Board’s Decision in details.  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.  In particular, the Board had properly assessed the evidence and was entitled to find that the Applicant had fabricated his claims (§§16-81, 88-129, 134, 136-139 and 144 of the Board’s Decision).  The Board’s Decision satisfies the enhanced Wednesbury test and is not unfair, 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.  Accordingly, I refuse to grant leave for judicial review.

8.  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

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

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

[1] https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000509_2020_files/the_Board's_Decision.pdf