NASIR AHMED v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2288/2020

[2025] HKCFI 4640

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2288 of 2020

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of the documents only;            or
	consideration of the documents and the Applicant being absent in open court;

1.  The Applicant’s Form 86 be amended to name the TCAB as the putative respondent; and

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

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 19 November 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review of a decision by the Torture Claims Appeal Board (the “TCAB”) dated 25 May 2018 (the “TCAB Decision”), which affirmed a decision by the Director of Immigration (the “DOI”) dated 10 July 2017 in refusing his non-refoulement protection claim. He named the adjudicator as the proposed respondent and the DOI as an interested party.

2.  I amended the Form 86 on my own motion to name the TCAB as the putative respondent.

3.  The TCAB Decision only concerned three of the four applicable grounds under the USM as the Applicant’s claim on the basis of torture risks was made and dismissed by the DOI in 2012. The Applicant did not appeal against this previous decision.

4.  The Applicant requested for a hearing but he was absent at the scheduled hearing on 5 September 2025. The court record shows that a revised Notice of Hearing was sent to his correspondence address on 27 August 2025, which was updated by the Immigration Department’s letter of 26 August 2025. I see no reason why I should not proceed to deal with this application on paper despite his absence.

5.  This application is plainly out of time and there is no application made for extension of time. The Applicant merely asserted in the Form 86 that he was only notified of the TCAB Decision in November 2020, and alleged in his affirmation filed in support of this application that he only received the TCAB Decision by hand on 16 November 2020. There is no explanation as to why he was unable to receive the same by mail in time.

6.  Despite the above, I would still proceed to consider the merits of the application in determining whether extension of time should be granted to entertain this application.

Background

7.  The Applicant is a national of India. He seeks non-refoulement protection on the basis that he would be harmed or even killed by money lenders whom he had disputes with if he was returned. His personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be assessed through a hyperlink[1], and I shall not repeat the same herein.

Discussion

8.  In a judicial review, this court does not provide a further avenue of appeal. Though in non-refoulement case an enhanced standard in scrutinizing the decision of the TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI are the primary decision-makers. This 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 TCAB (Nupur Mst v Director of Immigration [2018] HKCA 524, [14(1)]). There must be a reasonably arguable claim with a realistic prospect of success before leave for judicial review will be granted (Peter Po Fun Chan v Winnie Cheung & Anor (2007) 10 HKCFAR 676).

9.  In the Form 86, the Applicant raised procedural unfairness and unreasonableness/ irrationality as grounds for relief. In his affirmation filed in support of this application he complained that he was not legally represented at the hearing before the TCAB and he was only provided with the hearing bundle a few days prior, hence he did not understand what was going to happen at the hearing.

10.  Looking at the TCAB Decision, the TCAB had no trouble understanding and took into account the Applicant’s case [6-18], including the Applicant’s testimony at the hearing before it [19-27]. There is no indication that the Applicant did not understand what the hearing was about or that he had any difficulty with the hearing bundle, the truthfulness and correctness of the evidence in which he expressly confirmed [19].

11.  Then with the correct principles in the approach on appeal and to assessment of evidence in mind, the TCAB thoroughly analysed the materials before it, including relevant COI, and came to the finding that the Applicant’s allegations were not made out, and further state protection and internal relocation were both available [32-82].

12.  The TCAB proceeded the analyse each of the three applicable grounds under USM before it, applying in each instance the correct principles, and concluded that none was made out [83-107].

13.  I therefore do not see any error of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.

Conclusion

14.  For the above reasons, I am not satisfied that this court would have intervened by way of judicial review even if time were to be extended. I therefore dismiss the application.

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