MD KAMAL UDDIN v. TORTURE CLAIMS APPEAL BOARD

HCAL 3554/2019

[2025] HKCFI 5059

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3554 OF 2019

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

	consideration of the documents only; or
	consideration of the documents and oral submissions by the applicant in open court;

1.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board” and the name of the putative interested party be amended to “Director of Immigration”.

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

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated and filed on 29 November 2019, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 12 March 2019 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003554_2019_files/the_Board's_Decision.pdf

2.  The Board found that the applicant failed to substantiate that he qualified for non-refoulement protection on the grounds of BOR 3 Risk[1], BOR 2 Risk[2] and Persecution Risk[3] under the Unified Screening Mechanism (“the USM”). Hence, the Board dismissed the applicant’s petition against the decision of the Director of Immigration (“the Director”) dated 25 June 2018, which rejected the applicant’s non-refoulement claim.

3.  The applicant made a torture claim previously in 2009, which was rejected by the Director on 6 February 2014. The applicant did not file any appeal against that refusal. Thus, the applicant’s Torture Risk[4]had been finally determined and it was not necessary for the Board to re-assess the applicant’s Torture Risk in the Board’s Decision.

Amendments

4.  The applicant named “Winston Leung Adjudicator of the Non-refoulement Claims Petition Office” as the putative respondent and the Board as the putative interested party in Form 86.

5.  In fact, Mr Winston Leung was only making the decision in his capacity as a member of the Board. The Board should be the putative respondent and the Director should be the putative interested party.

6.  Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and to amend the name of the putative interested party to “Director of Immigration”.

The applicant’s case

7.  It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

8.  In sum, the applicant claimed for non-refoulement protection because if returned to India, he would be killed by a loan shark named Imran, as he was unable to repay him a loan of 400,000 Indian Rupees.

Late application

9.  By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant had to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made.

10.  However, the applicant filed Form 86 on 29 November 2019, which was more than 8 months after the Board’s Decision (made on 12 March 2019). The applicant was hence late for more than 5 months in making the Leave Application, and this court has to consider whether there is any good reason to extend the time for the applicant to make the Leave Application.

11.  As held in AW v Director of Immigration [2016] 2 HKC 393, the criteria for granting an extension of time are:

(i)  the length of the delay;

(ii)  the reason for the delay;

(iii)  the merits of the intended application; and

(iv)  any prejudice to the putative respondent and to public administration.

12.  The applicant did not make any application for extension of time and provided no explanation for the delay when he filed the Leave Application. At the oral hearing before this court on 7 August 2025, the applicant said that he had made an application to go back home after the Board’s Decision was made. However, he later learned from home that his problem was still there, and hence he filed the Leave Application.

13.  A delay of more than 5 months is substantial and the explanation given by the applicant is not satisfactory. Moreover, as discussed below, there is no merits of the intended judicial review at all. Thus, this court is not prepared to extend the time for the applicant to file the Leave Application, even if an application for extension of time was made. The Leave Application can be dismissed on the ground of being made out of time alone.

14.  However, for the sake of completeness, this court will still examine the merits of the Leave Application.

Oral hearing

15.  The applicant requested for an oral hearing of the Leave Application. His case was heard on 7 August 2025.

16.  At the hearing, when this court asked the applicant to provide the grounds for his intended judicial review, he merely replied that the Immigration Department would have detained him if he did not make the Leave Application.

Grounds for judicial review

17.  The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

18.  However, the applicant failed to advance any grounds for his intended judicial review in Form 86, nor in his supporting affirmation dated 29 November 2019.

19.  As aforesaid, the applicant did not advance any valid ground for the intended judicial review at the oral hearing before this court either.

Discussion

20.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness, or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

21.  Thus, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any valid ground being advanced by the applicant for the intended judicial review.

22.  In assessing the appeal by the applicant, the Board held an oral hearing on 6 November 2018. The applicant was present and was given the chance to present his case to the Board in person.

23.  On the applicant’s description of Imran, the Board found that Imran was no more than a mobile trader in SP Market like the applicant himself. The applicant admitted that he knew very little about Imran. The Board found the applicant’s conjecture that it would not be surprising if Imran had connections with politicians in the government as just a bare and flimsy assertion.

24.  The Board found it natural that Imran made a report to the police and kept on visiting the applicant’s home in the hope of finding him to settle the loan. Apart from some idle threats, there was nothing untoward in Imran’s course of actions to recover his money.

25.  The Board found that the applicant was in fear of Imran simply because he was his creditor, and it appeared to the Board that the applicant never had any intention to repay Imran. The Board was of the view that the applicant stayed in Hong Kong in order to shrink from the obligation, legal or moral, to repay Imran 400,000 Indian Rupees.

26.  Further, the Board found it obvious that the applicant was in fear of the police who were looking for him for the investigation of a crime. The applicant admitted that he owed Imran 400,000 Indian Rupees and made an oblique reference to a possible fact that he was being suspected of cheating Imran for this amount. If it was true that the applicant was running away to avoid the investigation of the police, he should be considered a fugitive from justice.

27.  The Board also noted that the applicant’s main fear of Imran was in connection with the loan which he had no intention to repay. To achieve the aim of skipping his obligation to repay the loan, the Board found it possible that the applicant could go to somewhere in India so that it would not be worthwhile for anyone to look for him or to do anything at all in relation to that account.

28.  The Board found the applicant’s fear that Imran would harm or kill him was based on an unfounded assumption that all creditors would kill their defaulting debtors. The applicant’s fear of Imran was not for a Convention reason. The Board also found that the applicant would not face any genuine and substantial risk of being subjected to torture, ill-treatment and arbitrary deprivation of life should he return to India.

29.  Thus, the applicant’s alleged danger in returning to India was fully assessed but rejected by the Board.

30.  The finding of facts was solely within the ambit of the Board. The Board was entitled to make its decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

31.  Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.

32.  As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

33.  For reasons aforesaid, the Leave Application is dismissed for being made out of time and also for lack of merits.

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

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