HUSSAIN ARIF v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1427/2022

[2026] HKCFI 3158

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1427 of 2022

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

1.   Form 86 be amended as follows:- 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 7 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 29 November 2022 (the “Board’s Decision”). 

2.  In the Form, the Applicant did not name any proposed interested party.  As it is trite that the Director of Immigration (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.  The Applicant however indicated at the hearing 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 is included below[1] for reference. 

5.  It should be noted that this is the Applicant’s second application for non-refoulement protection (see §§1-5 of the Board’s Decision).  His previous application was rejected by the Director and the Board, and his subsequent application for leave to apply for judicial review and appeal were all dismissed: see [2018] HKCFI 1796; [2018] HKCFI 2751; [2019] HKCA 504; and [2019] HKCA 784.  The present Leave Application is only concerned with the Board’s Decision dated 29 November 2022. 

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 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.  On the Form, the Applicant did not provide any grounds in support of the Leave Application.  In the supporting Affirmation, the Applicant attached a copy of the Board’s Decision to the Affirmation, and had provided a number of grounds which can generally be summarized as follows:-

(1)   The Applicant accused the Board of “cherry-picking” and “biased”.  As a result, the Applicant contended that the Board’s Decision was highly unfair and prejudicial. 

(2)   The Board’s assessment of the Applicant’s credibility was procedurally unfair and/or irrational. 

(3)   The Board’s Decision did not meet the necessary high standards of fairness and/or was otherwise unlawful. 

(4)   The Board erred by excluding or giving no weight to certain evidence because it regarded the same as hearsay or speculation. 

(5)   The Board was wrong to exclude matters totally from consideration in the balancing process simply because it believed the evidence was fragile or that the incident probably did not occur. 

(6)   The Board did not appear to have considered any humanitarian grounds or obtained information in making the finding that the Applicant’s account was “inherently implausible”. 

8.  I do not consider any of the grounds meritorious.  I shall briefly set out my reasons below. 

9.  For Grounds (1) to (3), they are no more than bare assertions with no particulars provided.  

10.  For Ground (4), the Applicant has failed to identify the precise evidence which he alleged the Board had excluded or given no weight.  In any event, as I shall explain below, I do not see any errors committed by the Board in evaluating the evidence. 

11.  Grounds (5) and (6) can be considered together.  The Applicant is basically challenging the Board’s evaluation of the evidence.  I have considered the Board’s reasoning and it is plain that the Applicant’s case is unreliable and not credible (§§31-53 of the Board’s Decision).  The Applicant had put forward fundamentally different stories before the Board (on the previous occasion) and the Director.  His evidence was indeed vague and unsatisfactory.  The Board was entitled (and indeed correct in my view) to come to the findings it did.  I see no errors committed by the Board. 

12.  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 reject the Applicant’s claims based on the evidence and its reasoning (§§31-53 of the Board’s Decision).  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. 

13.  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

14.  In the premises, I make an order that the Form be amended as stated 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