IRFAN MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 260/2020

[2025] HKCFI 2356

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 260 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.

2.  The Leave Application be dismissed.

Observations for the Applicant:

Introduction

1.  By prescribed Form 86 filed on 23 January 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 16 January 2020 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 24 December 2018 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on all applicable grounds. The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000260_2020_files/the_Board's_Decision.pdf

2.  In his Form 86, the applicant named the Director and the Adjudicator of the Board as the proposed respondents and did not name any interested party. As the Board should have been the proper respondent and the Director the proper interested party, the Form 86 will be accordingly amended on the court’s own motion.

3.  The basis of the applicant’s claim was that he would be harmed or killed by his landlord because of an outstanding debt. 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.  Pursuant to the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 28 April 2025. A notice of hearing with a reminder[1] of the consequences of absence dated 3 April 2025 was sent to the applicant’s last known address by ordinary post. The applicant did not turn up at the hearing. A phone call was made to the applicant’s given telephone number before the hearing, but to no avail. The information before this court shows that the said notice of hearing has not been returned undelivered through the post.

5.  In the circumstances, this court will dispose of the Leave Application according to the materials already placed before the court.

Discussion

6.  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.

7.  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.

8.  In his affirmation in support of his Form 86, the applicant stated that the Board’s Decision was unreasonable and unfair, and that the Board failed to give him sufficient time and opportunity to arrange relevant evidence for his claim and appeal. He also raised the ground that insufficient importance or weight was given to state acquiescence. The applicant also stated that though the Director listed relevant country of origin information (“COI”) that supported the applicant’s belief that the police in his country would not be able to protect him, such COI was not considered or given enough weight. In addition, the applicant complained of an unfair attitude by the Director, and a failure to meet the required high standards of fairness. However, he did not provide any particulars in support of his grounds.

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.[4] In the present case, whilst the Board accepted that there was a small but real risk of cruel, inhuman or degrading treatment or punishment from his landlord if he returned to his home area, it however found that such risk was localized. It is because the landlord’s political connections were only with local leaders of the former governing political party. On that basis, the Board concluded that internal relocation would be viable, and thus rejected the claim. 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 in the Decisions of the Director and the Board. The applicant’s written grounds set out in the supporting affirmation do not condescend to particulars, but only vague and general. Importantly, the grounds relating to the Director do not concern with the Board’s Decision. All in all, the applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision. 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[5].

Orders

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

12.  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