AL AMIN MD 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;

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

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 13 May 2022 (the “Form”), the Applicant applied for leave to apply for judicial review of the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 25 April 2022 (the “Board’s Decision”), which affirmed the decision of the Director of Immigration dated 23 July 2021 (the “Director’s Decision”).

2.  The Applicant requested an oral hearing for the application.  The hearing took place on 3 February 2026 and the Applicant attended in person.

Background

3.  The Applicant’s background, the basis of the Applicant’s claim and the arguments the Applicant advanced were set out in detail in the Board’s Decision.  It is not necessary for me to repeat the same here.  The hyperlink to the Board’s Decision is included below for reference.[1]

Discussion

4.  The applicable legal principles in this area 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 decisions of the Board due to the seriousness of the issues at hand, the Court should not usurp the role of the Board. Assessment of the evidence, country of origin information materials, risk of harm, state of 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].

5.  In the Form and the supporting affirmation, the Applicant contended that:

(1)   The Board was in breach of procedural fairness in the following respects:

(a)   The Board had unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that it did not satisfy the requirements.

(b)   The Board acted in a procedurally unfair manner in dealing with the Applicant’s appeal.

(c)   The Board’s decisions to refuse the Applicant’s appeal were unreasonable or irrational in the public law sense or are a result of procedural errors or unfairness.

(d)   The Board failed to meet the greater care and duty owed to a self-represented claimant.

(2)   There was no oral hearing.  The Applicant was not given a fair opportunity to put forward his submissions in an oral hearing, nor was he invited to submit written submissions.  When the Applicant filled in the Appeal Form, he was only asked to write grounds of appeal, which would not count as an opportunity to reply to submissions made by the representatives of the Director.

(3)   The Board significantly relied on the source of news which was not officially recognized or was simply hearsay.  It also relied on some cases which are fairly outdated considering the dramatic changes.  The lack of credible source of information resulted in the Board making groundless speculations that it would be safe for the Applicant to return to his country of origin.

6.  At the hearing on 3 February 2026, the Applicant submitted that the political situation in his home country was the same and repeated that he would be subject to risks of harm if he were to return to his home country.

7.  I do not consider any of the Applicant’s contentions meritorious.

8.  In relation to the contention at [5(1)] above, all the allegations contained therein are nothing but vague assertions.  The Applicant has not particularized, let alone demonstrated, how the Board acted unlawfully, unfairly, unreasonably, irrationally, or how the Board failed to meet the allegedly greater care and duty owed to a self‑represented claimant.

9.  So far as the contention at [5(2)] above is concerned, it is simply incorrect. As recorded in the Board’s Decision, a hearing for the appeal to the Board was conducted on 19 November 2021.  The Applicant was given ample opportunity to make his submissions (see in particular [10]-[11] of the Board’s Decision).

10.  As for the contention at [5(3)] above, the Applicant has again failed to identify what source of news or cases relied upon by the Board were “not officially recognized”, hearsay or outdated.

11.  Regarding the Applicant’s submissions at the hearing on 3 February 2026, they were merely re-arguing the case that had been rejected by the Board.

12.  Having considered the Board’s Decision, I do not find any error of law, procedural unfairness or irrationality.  The Board’s Decision was comprehensive with adequate reasons provided.  I consider that the Board was entirely entitled to reject the Applicant’s case based on the evidence (see, in particular, [70]-[79] of the Board’s Decision).  I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with realistic prospects of success.  See Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676, at [14]-[17].

13.  As held in Re Zunariyah [2018] HKCA 14, at [23], leave application operates as a filtering process and there is no requirement or expectation to give elaborated reasons for my decision.  It suffices for me to state that in reaching this decision, I have considered all the relevant documents and evidence before me.

Conclusion

14.  For the reasons above, I refuse the Applicant’s leave application and make the orders as set out above.

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