MOHAMMAD IRFAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1124/2020

[2025] HKCFI 3489

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1124 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 oral submissions by the Applicant 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 8 June 2020 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against (1) the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 25 May 2020 (the “Board’s Decision”); and (2) the decision of the Director of Immigration (the “Director”) dated 2 March 2020 (the “Director’s Decision”).

2.  The Director’s Decision had already been superseded by the Board’s Decision.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.

3.  In the Form, the Applicant named both the Director and the adjudicator responsible for the Board’s Decision as the proposed respondents.  The Applicant has not named any interested parties.  As it is trite that the Board should be the proposed respondent whereas the Director should be the proposed interested party, I make an order to amend the Form on the court’s own motion.

4.  The Applicant requested an oral hearing for the application.  The hearing took place on 21 July 2025 and the Applicant attended in person.  The Applicant however indicated that he had nothing to say at the hearing.

Background

5.  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

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

7.  The supporting Affirmation did not contain any grounds in support of the Leave Application.  In the Form, the Applicant provided a number of grounds which can generally be summarized as follows:-

(1)  The Board’s Decision was not reasonable and fair (as required by the Wednesbury test).  The Applicant claimed that his right to life is protected under Article 28 of the Basic Law and Article 2 of the Hong Kong Bill of Rights Ordinance (Cap. 383) (“HKBORO”). 

(2)  The Director had failed to appreciate or give proper importance or weight to the presence of state acquiescence in the Applicant’s case.  This had led to an unfair outcome of the case.  The Applicant claimed that he was tortured at the behest of the state law enforcement agencies as well as those in the high ups of the political circles.  The Applicant submitted that the state should be rendered liable to the Applicant for the acts of the state and its public officials for failing to provide reasonable protection for its citizens under the duty of due diligence.

(3)  The Board had acted unreasonably and was procedurally unfair by placing too much reliance on the COI materials but had failed to take the Applicant’s personal background and experience into account.  Further, the Applicant claimed that the Director had failed to consider or give enough weight to the evidence which supports the fact that the police in his country would not be able to protect.

(4)  The Director had failed to take into account or give enough weight to the Applicant’s argument. 

(5)  The Director showed an unfair attitude towards the Applicant or the Applicant’s claims.  There was corruption and incompetence of the administration in the Applicant’s country.  Various human rights organizations had complied reports on the matter which supports the Applicant’s assertions.

(6)  The Director had failed to attain the high standard of fairness required by the Wednesbury test.  As such, the Director’s Decision is unreasonable.

(7)  The Board was procedurally improper and unfair when assessing whether to accept the Applicant’s explanation, and had unreasonably required the Applicant to respond to questions which he was not in a position to respond.  The Board had failed to take into account the nexus of the political parties and official corruption which existed in the Applicant’s country, making the persecution effectively persecution by the state.

(8)  The Board’s Decision was irrational.

8.  I do not consider any of the above Applicant’s contention meritorious. I shall briefly set out my reasons below.  In so far as the Applicant’s complaints are made against the Director, I refer to my observation and ruling in §2 above.  I shall further consider such complaints as if the complaints were made against the Board as well.  

9.  In relation to point (1) above, the Board had correctly considered and applied the laws relating to Article 2 of the HKBORO (§§27-28, 80 of the Board’s Decision).  There was no errors committed by the Board in this regard.

10.  In relation to Point (2) above, the Applicant’s claim is based on the allegation that he had suffered harm in the past in India, whether from Thakur or any person or political group that may be associated with him (§75 of the Board’s Decision).  There was no allegation or evidence to suggest that the state or any public officials were involved, or that Thakur’s alleged acts complained of were committed in his capacity as a state official or on behalf of the state.  Accordingly, this ground has no relevance in the context of the case.

11.  In respect of Point (3) above, the Applicant has completely failed to demonstrate how the Board had allegedly acted unreasonably or in a procedurally unfair way.  The Applicant has equally failed to identify precisely which COI materials the Board had allegedly placed too much reliance on and why.  He has also failed to explain what personal background and experience of him he considered to be relevant which the Board had failed to take into account.  On the question of whether the police in India would be able to protect the Applicant, the Applicant has failed to explain how this is relevant to the claim in the light of the Board’s finding in §§64-77 of the Board’s Decision. 

12.  In respect of point (4) above, the Applicant has failed to identify precisely what argument(s) he had advanced which the Board had allegedly overlooked or failed to give sufficient weight. 

13.  In relation to point (5) above, the Applicant has completely failed to demonstrate how the Board had allegedly demonstrated an unfair attitude towards him.  The alleged corruption and incompetence of the administration in India is not relevant given the Board’s finding in §§64-77 of the Board’s Decision.

14.  Point (6) above is a general assertion without particulars in support. The Applicant has failed to show how the Board had allegedly failed to attain the high standard of fairness or that the Board’s Decision was unreasonable.

15.  In relation to point (7) above, the Applicant has again failed to explain how the Board had acted improperly or unfairly in the procedure.  It is also unclear what questions the Board had asked the Applicant which the Applicant considered to be unreasonable.  The Applicant has equally failed to explain precisely what “nexus of the political parties and official corruption” the Board had allegedly failed to take into account and its relevance.

16.  Lastly, in relation to point (8), the allegation that the Board’s Decision is irrational is a bare assertion without particulars in support.

17.  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’s Decision was comprehensive.  In particular, the Board was entitled to have significant concerns on the Applicant’s credibility given the inconsistencies and omissions in the evidence (§§68-77 of the Board’s Decision).  The Board was fully entitled to reject the claim accordingly.  The grounds in support of the Leave Application summarized above should be considered in the light of such findings.  The Board’s Decision satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational.  There is plainly no basis to say that the Board had failed to assess the Applicant’s claims properly.

18.  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.

19.  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

20.  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