MOHAMMED AKRAM v. TORTURE CLAIMS APPEAL BOARD

HCAL 3529/2019

[2025] HKCFI 5060

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3529 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 28 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 28 November 2017 (“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/HCAL003529_2019_files/the_Board's_Decision.pdf

2.  The Board found that the applicant’s appeal/petition failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board affirmed the decision of the Director of Immigration (“the Director”) dated 9 December 2016, which rejected the applicant’s non-refoulement claim.

Amendments

3.  The applicant named “Simon RUSSELL Member of the Torture Claims Appeal Board” as the putative respondent and the Board as the putative interested party in Form 86.

4.  In fact, Mr Simon Russell 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.

5.  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

6.  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.

7.  In sum, the applicant claimed for non-refoulement protection because if returned to India, he would face harm from his creditor, Naseem, who had connections to the CPM Forward Block Party, a powerful political party in India, as he could not repay the loan to Naseem.

Late application

8.  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.

9.  However, the applicant filed Form 86 on 28 November 2019, which was 2 years after the Board’s Decision (made on 28 November 2017). The applicant was hence late for 21 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.

10.  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.

11.  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 merely said that he had no idea why the application was filed late. Thus, the applicant offered no reason for the delay at all.

12.  A delay of more than 21 months is very substantial and the applicant provided no reason to justify the delay. More importantly, 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.

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

Oral hearing

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

15.  At the hearing, when this court asked the applicant to provide the grounds for his intended judicial review, he merely replied that he still had a problem in his home country and that was why he made the Leave Application.

Grounds for judicial review

16.  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).

17.  However, the applicant failed to advance any grounds for his intended judicial review in Form 86, nor in his supporting affirmation.

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

Discussion

19.  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).

20.  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.

21.  In assessing the appeal by the applicant, the Board held an oral hearing on 29 September 2017. The applicant was present and was given the chance to present his case to the Board in person.

22.  However, the applicant refused to answer any questions raised by the Board and chose to rely on the statements he had supplied to the Immigration Department. The Board was, therefore, unable to clarify inconsistencies within the applicant’s claim and discrepancies with the country of origin information (“COI”) and warned the applicant to that effect.

23.  The Board was prepared to accept the applicant’s account of having borrowed money from Naseem and being unable to repay the loan. However, the Board found that the applicant’s naming of the political affiliation of Naseem, namely the CPM Forward Block Party, meant that he was referring to two political parties, and his inability to distinguish them detracted from a suggestion that Naseem relied on political patronage in his dispute with the applicant. More importantly, the Board found that the applicant’s problems with Naseem were not motivated by politics but by money and there was nothing in the applicant’s account to suggest that his problems were due to political differences with Naseem.

24.  After due consideration of all the evidence before it, the Board did not accept that the applicant suffered harassment or threats from Naseem as a result of his inability to repay the loan of an intensity sufficient to give rise to a fear. The Board did not accept that the applicant left India and entered Hong Kong in search of international protection. Further, the Board did not accept that the applicant’s problems with Naseem proceeded from or were influenced by political motives but were limited to the non-repayment of a substantial loan to the applicant.

25.  The Board noted that there was no evidence, even in the statements of the applicant himself, to suggest Naseem had ever attempted a serious form of attack against him in the past. The Board also noted that the applicant moved only a short distance away in Kolkata, where he experienced no problems, having remained in his home area while taking no action to evade Naseem or report him to the police. On that basis, the Board concluded that it was unlikely that the applicant would be of any interest to Naseem, some 12 years after the applicant had left India.

26.  On the question of state protection, the Board noted that COI raised a number of concerns about the effectiveness of the police in West Bengal, but the Board also found no suggestion that Naseem’s actions against the applicant were motivated by anything other than a desire to get his money back. There was also no suggestion that Naseem had used his political connections (to a non-existent party) to influence the police or to apply pressure to the applicant. The applicant had never approached the police or other authorities for protection.

27.  The Board found no suggestion in the evidence that Naseem was a public official or acting with official acquiescence. There was no evidence of severe physical or mental pain to the applicant. In any event, Naseem was not pursuing the applicant for a purpose listed in the definition of torture, or one which related, even remotely to the interests and/or policies of the torture risk state.

28.  Despite its finding that the applicant did not face any of the proscribed forms of harm, the Board did assess the viability of internal relocation for the applicant. The Board found no evidence whatsoever to suggest that Naseem had any influence outside his local area. As mentioned, the applicant removed himself to an area only 15 minutes away from his home area and experienced no problems with Naseem. The Board concluded that it would be safe for the applicant to move to a different part of India. Further, it would not be unreasonable for the applicant to relocate to a different part of India where he would be able to use the skills he had acquired from years of retail work in order to establish himself. The Board thus concluded that the applicant did have a safe and reasonable internal relocation alternative and did not face a real risk of any form of harm upon return to India.

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

30.  The assessment of evidence, COI and risk of harm 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

Form CALL-1