MOHAMMED UMAR FAROOQUE v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 523/2020

[2025] HKCFI 2200

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 523 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 7 April 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 20 March 2020 (the “Board’s Decision”); and (2) the decision of the Director of Immigration (the “Director”) dated 29 March 2018 (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  The Director’s Decision had already been superseded by the Board’s Decision.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 has 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 6 May 2025 and the Applicant attended in person. I shall deal with the Applicant’s submissions hereinbelow.

Background

5.  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 as well as the Board’s earlier decision dated 20 May 2015 (the “Board’s Earlier Decision”), and it is not necessary for me to repeat the same here. The hyperlink to the Board’s Decision[1] and the Board’s Earlier Decision[2] are 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 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 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.

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

(4)  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.

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

(6)  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.

(7)  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 paragraph 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 (§§19-24 of the Board’s Decision). There was no errors committed by the Board in this regard.

10.  In respect of Point (2) 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 under Article 2 of the Hong Kong Bill of Rights and in the light of the Board’s finding in §23 of the Board’s Decision.

11.  In respect of point (3) 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.

12.  In relation to point (4) 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 §23 of the Board’s Decision.

13.  Point (5) 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.

14.  In relation to point (6) 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.

15.  Lastly, in relation to point (7), the allegation that the Board’s Decision is irrational is a bare assertion without particulars in support.

16.  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 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.

17.  At the hearing on 6 May 2025, the Applicant submitted two documents to the court. One is an undated article from Al Jazeera entitled “ ‘Traitors’: Hate-filled songs target Indian Muslims after Kashmir attack”. The other is a Wikipedia printout about a gentleman called “Firhad Hakim”. Firhad Hakim is the man whom the Applicant claimed to fear of being harmed or killed in the claims.

18.  There is no application to adduce the documents. Nevertheless, I have considered both documents but do not see how these documents assist the Leave Application. The Applicant intends to rely on these documents to show the current situation in India as well as the alleged fact that Firhad Hakim has now become more powerful. However, none of this is relevant to the present application given (1) the Board’s Decision was in relation to Article 2 of the Bill of Rights; and (2) the Board’s finding in §23 of the Board’s Decision.

19.  The Applicant also criticized the Board’s decision that he can relocate to another place in India. However, the Board did not talk about relocation in the Board’s Decision. The Applicant may have mixed up the Board’s Decision with the Board’s Earlier Decision. The latter is not the subject matter of the Leave Application.

20.  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.

21.  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

22.  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