MOHAMMED AZHAR UDDIN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 784/2020

[2025] HKCFI 4198

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 784 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;

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

Observations for the Applicant:

1.  By a Form 86 filed on 28 April 2020 (“Form 86”), the Applicant sought leave for judicial review of the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”) made on 16 April 2020 (“the Board’s Decision”). A copy of the Board’s Decision can be viewed by the following hyperlink[1].

2.  The Board’s Decision was made pursuant to a petition/appeal from a decision of the Director of Immigration (“DI”) dated 4 May 2018. The Board and the DI are respectively the putative respondent and putative interested party to this application.

3.  The Applicant is an Indian national. His non-refoulement claim was based on the fear of being harmed or killed by a businessman because the Applicant had refused to sell him a piece of land. The businessman was said to have an extensive political network.

4.  After an oral hearing, the Board found the Applicant’s account not credible. There was thus no reliable evidence that the Applicant would be subject to any real risk of being harmed, killed, tortured or violated his fundamental human rights under the Hong Kong Bill of Rights; neither was he under any well-founded fear of being persecuted so that he had to stay outside India. The Board also found reasonably sufficient State protection to negate any risk to the Applicant (even if any) and the existence of reasonable internal relocation alternative.

5.  In his Form 86 and supporting affirmation in this leave application, the Applicant has set out a few grounds on which relief is sought; the Applicant did not seek to supplement those written grounds in the oral hearing of this leave application. Those grounds are summarized as follows and will not be dealt with by their order in the affirmation because of the great extent of overlapping. First, it was said the Board failed to meet “greater care and duty” owed to a self-represented claimant. Secondly, it was said the Board failed to consider the risk of violation of the Applicant’s right to life under Article 2 of the Hong Kong Bill of Rights (“BOR2”). Thirdly, it was said the Board had relied on country of origin information (“COI”) which was not officially recognised or simply hearsay, and some of which was fairly outdated.

6.  As to the first ground, the Applicant did not particularise the duty owed by the Board to him and how it was breached. I am unable to find any indication that the Board had failed to perform its duty in an appropriate manner.

7.  The Board did assess the Applicant’s right under BOR2. The second ground is obviously inapplicable.

8.  As to the third ground, the Board found the Applicant’s claim incredible. Non‑refoulement protection was denied primarily on this ground. In such situation, whether and how COI was assessed assumed less significance. In any event, the Board did consider COI from official overseas sources such as the United States’ Department of State (dated 13 March 2019) which was quite recent to the time of the Board’s Decision. There is no substance in the third ground.

9.  The Applicant also vaguely suggested the Board’s Decision to be irrational and the product of “unlawful fettering of discretion”, that there was no regard of the “life and limb in jeopardy” principle and that the Board should conduct a hearing de novo (which in my view the Board did). There was no elaboration as to how those grounds applied to the case and I find no substance in them. I do not intend to deal with each of those vague assertions.

10.  It has been reiterated time and again that the primary responsibility for the factual assessment of whether any risk of ill-treatment exists lies with the Board. In the absence of any errors of law, procedural unfairness or irrationality, the Court would not reopen the Board’s findings or make a determination on the case afresh. The role of the Court in a judicial review is not to provide a further avenue of appeal (see Re Lakhwinder Singh [2018] HKCA 246).

11.  I have reviewed the Board’s Decision vigorously, but do not find the proposed judicial review reasonably arguable. The leave application is thus 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