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

HCAL 1367/2020

[2026] HKCFI 83

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1367 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 Form 86 is amended on the Court’s own motion, naming only the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office as the Putative Respondent, and adding “/Non-Refoulement Claims Petition Officer” after the words “TCAB”; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  The Applicant is a national of India. By a Form 86 filed on 2 July 2020 (“Form 86”), which was accompanied by a supporting Affirmation also filed on 2 July 2020 (“the Affirmation”), the Applicant sought leave to apply for judicial review of a decision (which was exhibited to the Affirmation) of the Torture Claims Appeal Board (“TCAB”)/Non-Refoulement Claims Petition Office (“NRCPO”) made on 12 June 2020 (“the TCAB Decision”)[1]. I will use the abbreviations and definitions from the TCAB Decision unless otherwise specified herein.

2.  The Applicant sought an oral hearing of his application, but did not appear at the hearing scheduled on 28 August 2025. Whilst the Notice of Hearing issued by post on 11 July 2025[2] was returned to the High Court on 28 July 2025 with the indication “Incomplete Address”, by giving an apparently inaccurate and/or ineffective address to the court, he has failed to discharge his duty to give the court an address to which correspondence or notice can come to his attention in a timely manner (Islam Raja Rais v. Director of Immigration, HCMP 881/2017, 26 June 2017; Said Umair v Torture Claims Appeal Board [2018] HKCA 82; Re Saqlain Muhammad [2018] HKCA 346; Hasmi Rizwan Imran [2018] HKCA 439). Moreover, and for reasons best known to him, he did not respond to attempts by court staff to contact him, on 22 and 25 August 2025, at the mobile phone number provided. In the circumstances I have dealt with his application on the papers.

Background

3.  This is set out in the TCAB Decision. While I will not repeat the contents thereof, in summary and in relation to the assessment of his claim:

(1)  The Applicant claimed non-refoulement relief on the basis that if he were sent back to India, he would be harmed or killed by his grandfather’s younger brother, Shahid, and his sons Babloo, Raja, and Shehzad;

(2)  A claim for relief in relation to Torture Risk[3] was initially submitted, and was rejected, by the Director of Immigration (“Director”) on 6 February 2014 (“Director’s Decision”) against which the Applicant lodged an appeal on 20 February 2014;

(3)  The Applicant made a non-refoulement claim on 7 March 2014, and on 17 April 2014 successfully obtained from the TCAB/NRCPO an adjournment of his appeal against the Director’s Decision pending the decision in relation to his non-refoulement claim;

(4)  The non-refoulement claim was subsequently assessed by the Director on the grounds of BOR 2 Risk[4], BOR 3 Risk[5], and Persecution Risk[6], and was rejected in a decision dated 31 May 2018 (“Director’s Further Decision”), in relation to which the Applicant filed a notice of appeal/petition dated 12 June 2018;

(5)  The TCAB/NRCPO held a hearing which was attended by the Applicant (who was represented by a Duty Lawyer) on 27 May 2020, and subsequently issued the TCAB Decision dated 12 June 2020, in which the Applicant’s appeal/petition was dismissed, and the Director’s Decision and the Director’s Further Decision were both confirmed.

Legal Principles

4.  An applicant, even one acting in person, is required to identify the grounds of judicial review clearly and succinctly in the Form 86, and to fully and frankly disclose all material facts and potential legal answers (Ho Loy & Another v Director of Environmental Protection, unrep. HCAL 21/2015, 22 December 2016, Chow J. (as he was then) at §142; Leung Kwok Hung, unrep., HCAL 83/2012, 28 September 2013, Lam J. (as he was then) at §35; Begum Khadija [2018] HKCA 571; Khan Kamran [2020] HKCA 380).

5.  It is trite that the role of the Court in a judicial review is not to provide a further avenue of appeal, and that the Court should not usurp the role of the TCAB/NRCPO which is (and together with the Director are) the primary decision‑makers. The assessment of evidence, COI materials, and credibility, risk of harm, state protection and viability of internal relocation are primarily within the province of the TCAB/NRCPO and the Director, which are entitled to make evaluations based on the evidence available and to decide the weight to be given to them. While the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, 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 TCAB/NRCPO. (Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; Nupur Mst v Director of Immigration [2018] HKCA 524; Re Kartini [2019] HKCA 1022; Re Rupinder Singh [2021] HKCA 886).

6.  In order for me to give leave for judicial review, I have to be satisfied that there is an intended ground of review which is reasonably arguable, which is one that enjoys a realistic prospect of success (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676). As a leave application of this sort is meant to be a filtering process, I am not expected to give elaborate reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23).

Discussion

7.  The Form 86 does not identify any grounds of judicial review. Nor does the Affirmation. The latter merely claims (i) That the Applicant does not agree with the TCAB decision, which is not a ground of judicial review; and (ii) That he “did not get fair and legally decision”, which is a generic, vague, and unparticularised assertion without reference to any underlying facts or matters establishing why, how, and where each of those complaints arise in relation to the TCAB Decision and is not an effective ground to support a judicial review and cannot assist an applicant (Re Mizan Sikder [2019] HKCA 20 at §17; Re Aziz Nasir [2019] HKCA 578 at §24; Re Kharsu Numan [2019] HKCA 626 at §24; Re Salim Ahmed [2020] HKCA 244 at §20; Haider Khalil [2021] HKCA 223 at §16; Akhondo Shakhil [2021] HKCA 1616 at §15).

8.  There is hence no allegation of any procedural unfairness in relation to, and/or of any error of law in, and/or any irrationality/failure to meet the enhanced Wednesbury test in, the TCAB Decision.

9.  Nevertheless, given the seriousness of the issues at hand, I have in relation to the question of merits of the substantive application considered the TCAB Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard and bearing in mind the need for a high standard of fairness.

10.  The TCAB/NRCPO set out the Applicant’s procedural and immigration history (Paragraphs 1 to 7) then outlined the four relevant bases of risk with reference to relevant principles (Paragraphs 8 to 19). It summarised the facts of the Applicant’s case (Paragraph 20) moved on to the conduct of the oral hearing and its evaluation of the facts of the Applicant’s case (Paragraphs 21 to 36), found that state protection was available to the Applicant, and then addressed Torture Risk, BOR 3 Risk, BOR 2 Risk, and Persecution Risk having regard to salient concepts and findings (Paragraphs 37 to 59).

11.  The TCAB/NRCPO went on to consider internal relocation. It found that on the evidence it was open to the Applicant to relocate (for example, to Delhi, Mumbai, or Kolkata) and it would not be unduly harsh for him to do so (Paragraphs 60 to 64). Having considered all of the evidence, it dismissed the appeal/petition (Paragraphs 65 to 66).

12.  I do not, from my examination and scrutiny, see that the Applicant has any reasonably arguable case that there was procedural unfairness (bearing in mind the need for a high standard of fairness), an error of law, and/or irrationality/failure to meet the enhanced Wednesbury test that is sufficient to vitiate the TCAB Decision and justify the grant of leave. This is especially so given the assessment, reasoning, and findings regarding the risk of harm, state protection, and accordingly Torture Risk, Persecution Risk, BOR 3 Risk, and BOR 2 Risk. Moreover, and in any event, the findings made in relation to internal relocation (which like the aforesaid matters are within the province of the decision-maker) would inevitably have led to the conclusion that there was no basis for affording the Applicant non-refoulement protection.

13.  I am not therefore not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success, or that there is any basis for the court to intervene by judicial review.

Conclusion

14.  In the circumstances I have ordered that the application for leave to apply for judicial review be dismissed and made the other orders above.

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