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

HCAL 1010/2020

[2025] HKCFI 4361

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1010 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 oral submissions by the Applicant in open court;

1.  The Form 86 be amended on the court’s own motion.

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

Observations for the Applicant:

Introduction

1.  By A “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 26 May 2020, the applicant applied for leave to apply for judicial review (“Leave Application”).  The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 15 May 2020 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 30 January 2019 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on all applicable grounds except torture risk[1].  Torture risk was covered by a prior decision of the Director dated 24 June 2013.  The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001010_2020_files/the_Board's_Decision.pdf

2.  In the Form 86, the applicant named the Board as the interested party. As the Director should have been the proper interested party, the Form 86 will be amended accordingly on the court’s own motion.

3.  The basis of the applicant’s claim was that he would be harmed or killed by the three suspects in a murder that the applicant witnessed in Bangladesh.  The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them.  Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

4.  At the applicant’s request for a hearing of the Leave Application, this court held a hearing on 3 July 2025.  The applicant attended the hearing in person.  After having heard from him, this court informed him that the decision would be reserved, and be sent to his updated address.

Discussion

5.  The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[2] It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

6.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[3], and further to make full and frank disclosure of all material facts to be verified by an affidavit.   

7.  In his Form 86 and supporting affirmation, the applicant did not raise any grounds for judicial review. On 11 June 2025, the applicant submitted his written grounds for judicial review, submitting that :

(a)  The Board failed to conduct sufficient inquiry into the relevant country of origin conditions;

(b)  The Board failed to give reasons and/or a sufficient basis for concluding that there was no BOR 2 risk^[4];

(c)  The Board failed to consider the psychological strain and threats to the applicant;

(d)  The Board failed to consider that refoulement and internal relocation were not feasible because the applicant’s enemies could trace him throughout the country;

(e)  There was no sufficient basis to conclude that the applicant’s family members would not be at risk of being subject to torture and/or cruel, inhuman or degrading or punishment.

8.  At the hearing, this court asked the applicant whether he had any further grounds he wished to submit in support of the Leave Application.  The applicant informed the court that the Board’s reference at [11] of the Board’s Decision that he had remarried to an Indonesian was inaccurate.  He had an Indonesian girlfriend then.  It was only on 22 April 2025 that the applicant re-married to a Hong Kong resident.  He stated that there was still torture against his family including against his children.

9.  As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality.[5] In the present case, the Board found that the applicant’s evidence in relation to the various aspects of his account was speculative, unreasonable and illogical. The Board rejected the applicant’s accounts.  The Board found that there was no real risk of harm as the applicant had not been physically assaulted.  The Board also found that state protection would be available and that internal relocation would be viable.  These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

10.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness.  I am satisfied that the Board was entitled to reach the conclusion regarding the lack of harm after having rejected essentially the centerpiece of the applicant’s evidence.  The applicant provided no grounds at all in support of the Leave Application.  The written submissions the applicant provided before the hearing were vague and did not condescend to particulars. Neither was the applicant able to advance any grounds at the hearing before the court. All in all, I find that the applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision either on paper or at the hearing.  The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[6].

Orders

11.  The Form 86 be amended on the court’s own motion.

12.  The application for leave to apply for judicial review 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