RAZA HASSAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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

Following;

1.  Form 86 be amended as follows:- 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 14 December 2020 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against the decision made by the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office (the “Board”) on 19 November 2020 (the “Board’s Decision”).

2.  In the Form, the Applicant named the Board as both the proposed respondent and the proposed interested party.  As it is trite that the Board should be the proposed respondent and the Director of Immigration (the “Director”) should be the proposed interested party in an application of this sort, I make an order to amend the Form on the Court’s own motion.

3.  The Applicant requested an oral hearing for the application.  The hearing took place on 1 September 2025 (the “Hearing”).  Notice of Hearing dated 13 August 2025 was issued to the Applicant at the address provided by the Applicant on the Form.  Attempts were also made to contact and remind the Applicant of the Hearing by phone (at the numbers provided by the Applicant on the Administrative Form and on Form No. 8) on 28 and 29 August 2025 but the Applicant could not be reached on both occasions (one of the numbers provided was not registered). The Applicant did not attend the Hearing. 

4.  On 3 September 2025, the Court received a letter from the Applicant.  In the letter, the Applicant stated that he only received the Notice of Hearing at night on 1 September 2025 and so he did not attend the Hearing.  The Applicant also said he has a new address, and he requested for another hearing. 

5.  I do not consider that the Court should accede to the Applicant’s request for another hearing the following reasons:-

(a)  First, what the Applicant stated in the letter was bare assertion without supporting evidence.  The Applicant did not even confirm what he said on oath.  I do not accept that the Applicant only received the Notice of Hearing at night on 1 September 2025 as alleged.  Even if he did, there is no information as to whether this was due to the fact that the Applicant did not check the mailbox regularly or due to other reason(s).  In so far as the Applicant contends that the he did not receive the Notice of Hearing because he has moved to a new address, there is no evidence showing when the Applicant has moved to the alleged new address.  The Applicant has also failed to explain how he came to receive the Notice allegedly at night on 1 September 2025 eventually.  This Court is simply not in a position to ascertain the true reason behind the non-attendance.

(b)  Second, even assuming that the Applicant only received the Notice of Hearing at night on 1 September 2025, there is no explanation why the Applicant did not immediately write to the Court and explain the circumstances on the next day.  As mentioned above, the Court only received the letter on 3 September 2025.

(c)  Most importantly, in considering whether to grant indulgence to the Applicant and arrange another hearing for the Leave Application, this Court has to consider the issue of prejudice.  In the letter, the Applicant did not explain, even briefly, what he intended to say in the hearing.  As will be pointed out below, the Applicant did not provide any grounds in support of the Leave Application in either the Form or in the supporting Affirmation.  Bearing in mind that the Applicant is seeking indulgence from this Court in requesting another hearing, it is incumbent on the Applicant to provide cogent reasons in support of such request.  The Applicant has plainly failed to do so. 

(d)  In the premises, the Applicant has not persuaded me why further court resources should be incurred in arranging another hearing for the Applicant given that he had already been given a hearing date before but he simply failed to attend the hearing.    

6.  Accordingly, I consider it appropriate to proceed with the Leave Application in the absence of the Applicant.  I shall add that despite not acceding to the Applicant’s request for another hearing, this Court will still consider the Leave Application based on the materials submitted by the Applicant.

Background

7.  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 is included below[1] for reference.

Discussion

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

9.  In the Form, the Applicant did not provide any grounds in support of the Leave Application.  In the supporting Affirmation, the Applicant simply stated that he is not satisfied with the Board’s Decision, and that he cannot go back to his country because his life is not safe there.

10.  I have considered the Board’s Decision in detail.  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 with adequate reasons provided.  The Board was entitled to reject the Applicant’s claims based on its evaluation of the evidence and the reasoning provided (§§56-167 of the Board’s Decision).  I do not see any errors committed by the Board.  The Board’s Decision satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational.  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.

11.  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.    

Conclusion

12.  On 16 October 2025, the Court received a letter from the Immigration Department.  In the said letter, the Immigration Department indicated that the Applicant had applied to withdraw the Leave Application on 3 October 2025.  As a result, removal proceedings of the Applicant would be resumed as soon as practicable. 

13.  In the light of the reasons provided above, I would have dismissed the Leave Application in any event even if the Applicant has not applied to withdraw the Leave Application.  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