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HCAL 3686/2019
[2025] HKCFI 1165
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3686 of 2019
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Ahmed Razu |
Applicant |
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and
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
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Putative Respondent |
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and
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Director of Immigration
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Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)
Following:
Order by Deputy High Court Judge (Non-refoulement Claims) Philips Wong
1. Form 86 be amended as follows:- (1) the Director of Immigration be named as the Putative Interested Party; and (2) the date of the decision in respect of which relief is sought be amended to 6 December 2019.
2. The application for leave to apply for judicial review be dismissed.
Observations for the Applicant:
Introduction
1. By Form 86 filed on 10 December 2019 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against the decision of the Torture Claims Appeal Board/ Non-Refoulement Claims Petition Office (the “Board”) dated 6 December 2019 (the “Board’s Decision”).
2. In the Form, the Applicant has not named any proposed interested party. I make an order to amend the Form by adding the Director of Immigration (the “Director”) as the proposed interested party on the court’s own motion pursuant to the established practice.
3. In the Form, the date of the Board’s Decision the subject matter of the Leave Application was mistakenly stated to be 6 November 2019. I make an order to amend the date to 6 December 2019.
4. The Applicant had requested an oral hearing for the application. The hearing took place on 5 March 2025. According to the record, the Applicant was reminded of the hearing by phone on 3 March 2025 and he confirmed he would attend the hearing. Despite the aforesaid, the Applicant did not attend the hearing. On 7 March 2025, the Court received a letter from the Applicant stating that he only got the Notice of Hearing on 6 March 2025. The Applicant requested the Court to arrange a new hearing so that he can tell the Court his problem in his country. The Applicant also stated that if he returns to his country, he will be killed by his enemies.
5. I do not see any justification of the Applicant’s request for a new hearing. The Notice of Hearing was issued to the Applicant on 6 February 2025 at the address provided by the Applicant. The Applicant should have received the Notice of Hearing long before the hearing date. The fact that the Applicant may not have checked his mailbox or that he may have overlooked the Notice is not a valid justification for his absence. Further and more importantly, the Applicant was specifically reminded of the hearing on 3 March 2025 by phone and the Applicant confirmed that he would attend the hearing. Accordingly, there is no justification for the Applicant not to attend the hearing. In so far as the Applicant suggested that he was not aware of the hearing, that must be a lie. In the premises, I refuse the Applicant’s request for a new hearing. In any event, I note that the Applicant simply wanted to tell this Court his alleged problem in his home country and that he will be killed by his enemies if he returns there, rather than why the Board’s Decision was allegedly wrongly or unfairly decided. I see no basis to arrange another hearing for the Applicant on that basis. It should be noted that the Applicant should have stated the grounds and evidence in support of his Leave Application in the Form and in the supporting Affirmation.
Background
6. The Applicant’s background, the basis of his claim and the arguments he advanced had been set out in details 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
7. 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 or procedural unfairness or irrationality in the decision of the Board. (See Nupur Mst v Director of Immigration [2018] HKCA 524, at §14)
8. In the Form, the Applicant did not provide any grounds in support of the Leave Application. In the supporting Affirmation, the Applicant alleged that the Director (presumably he meant the Board) reached the wrong decision in assessing his claim. The Applicant alleged that the Director (presumably he meant the Board) rejected the Applicant’s claim without proper inquiry and without carefully understanding his situation. To understand the Applicant’s claim fairly, the Applicant said the immigration officers ought to tour his country and ask those familiar with his case what real danger he would face if he is to return there.
9. I do not consider the Applicant’s above contention meritorious. There is no legal basis to require the Director or the Board to actually visit the Applicant’s home country to conduct any investigation of a non-refoulement claim. Whilst the inquiry is one of joint endeavor, the burden is on the Applicant to prove his claims. In the present case, the Director and the Board had plainly conducted proper inquiries into all relevant matters.
10. Having fully considered the Board’s Decision. 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 very comprehensive with adequate reasons provided. It satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational. There is plainly no basis to say that the Board had failed to assess the Applicant’s claims properly.
11. In the premises, 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 and the Leave Application is hereby dismissed.
12. 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, as well as the grounds advanced by the Applicant.
Conclusion
13. In the premises, I make an order that the Form be amended as described above and the Leave Application be dismissed.
Dated the 27th day of March 2025.
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(Alfred Chan) |
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for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 27/3/2025
Ahmed Razu
Applicant’s ref. no:
Nil |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 27/3/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 16361/19/10/10/B2098
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 689/19 (formerly RBCZ 10503/19)(T2S4)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003686_2019_files/the_Board's_Decision.pdf
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