ASHRAF AZAD MOHAMMED v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 3533/2019

[2025] HKCFI 5257

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3533 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 2^nd putative respondent be amended to “Torture Claims Appeal Board”, and the 2^nd decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 13 April 2017”. 

2.   The applicant’s application for leave to apply for judicial review in respect of both the decision of the Director of Immigration dated 25 November 2016 and the decision of the Torture Claims Appeal Board dated 13 April 2017 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 two decisions, namely:-

(1)  “The Decision of the Director of Immigration dated 25^th November 2016”; and

(2)  “The Decision of the Adjudicator dated 13^th April 2017”.

2.  The Torture Claims Appeal Board (“the Board”) made a decision dated 13 April 2017 (“the Board’s Decision”) in respect of the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 25 November 2016 (“the Director’s Decision”).

3.  It is clear that the first decision above-mentioned is the Director’s Decision, and the second decision is the Board’s Decision.

4.  At the oral hearing before this court on 12 August 2025, the applicant insisted that both the Director’s Decision and the Board’s Decision should be the subject matters of the Leave Application.  

5.  The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003533_2019_files/the_Board's_Decision.pdf

6.  The Board found that the applicant had failed to prove reason for non-refoulement on any of the applicable grounds under the Unified Screening Mechanism (“the USM”).  Hence, the Board dismissed the applicant’s appeal and refused the applicant’s petition against the Director’s Decision, and confirmed the same.

Amendments

7.  In Form 86, the applicant named “The Adjudicator of the Non-refoulement Claims Petition office appointed to determine the Applicant’s Petition” as the 2^nd putative respondent.

8.  The adjudicator was in fact making the Board’s Decision on behalf of the Board.  Hence, the Board should be named as the 2^nd putative respondent.  The Non-refoulement Claims Petition Office is just an office which provides administrative and secretariat support to the adjudicators of the Board and should not be named as a putative respondent at all. 

9.  Thus, this court makes an order on its own motion to amend the name of the 2^nd putative respondent to “Torture Claims Appeal Board”, and to amend the 2^nd decision in respect of which relief is sought to “Torture Claims Appeal Board’s decision dated 13 April 2017”.

The applicant’s case

10.  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.

11.  In sum, the applicant claimed for non-refoulement protection because if refouled to India, he feared harm or ill-treatment by his creditors, people from the All India Trinamool Congress (“TMC”) and a man named Saddan, who used to be his best friend and was a member of the Communist Party of India (Marxist) (“CPM”).

12.  He borrowed money from different creditors for his business but was unable to repay them.  

13.  He feared reprisals by TMC as Saddan had, upon his request, asked people of CPM to tear down the hut built by TMC on his land and reclaim the land for him.  He claimed he had been kidnapped and tortured in 2009 and he did not know whether the kidnappers were sent by his creditors or people of TMC.

14.  He was saved by one of the three kidnappers, “X”, by offering to pay him 200,000 Indian Rupees.  However, he was only able to pay “X” 150,000 Indian Rupees in the end and “X” was furious.  After receiving the reduced sum, “X” warned the applicant not to be seen in Kolkata again as it would create problems for the applicant and himself.

15.  The applicant also feared harm from Saddan as they had a fight in 2011 which arose from Saddan’s “improper association” with his wife.  Though both Saddan and the applicant were injured, Saddan was more seriously injured with a fractured leg and he told some common friends and the applicant’s parents that he had made and supported the applicant, but he would now destroy the applicant.

Late application

16.  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 Director’s Decision and the Board’s Decision were respectively made.

17.  However, the applicant filed Form 86 on 28 November 2019, which was more than 3 years after the Director’s Decision (made on 25 November 2016) and more than 2 years and 7 months after the Board’s Decision (made on 13 April 2017). The applicant was hence late for more than 2 years and 9 months in respect of the Director’s Decision and 2 years and 4 months in respect of the Board’s Decision 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.

18.  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.

19.  The applicant did not make any application for extension of time when he filed the Leave Application. 

20.  At the oral hearing before this court on 12 August 2025, when this court asked the applicant for the reason for the delay, he merely said he was in detention at the CIC[1] and he did not know what to do.  He later asked his lawyer and then he made the Leave Application.

21.  The delay in respect of both decisions were very substantial and the explanation given by the applicant is not satisfactory.  Even if he was detained at the material time, he could still have filed the Leave Application by asking for assistance from the Immigration Department, just like other non-refoulement claimants who were detained did.

22.  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.

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

Oral hearing

24.  The applicant requested for an oral hearing of the Leave Application. His case was heard on 12 August 2025.

25.  At the hearing, when this court asked the applicant for the grounds for his intended judicial review, he merely said that his brother had taken over all his business, he was kidnapped and it was dangerous for him to go back to India.

26.  When this court invited him to elaborate on the grounds mentioned in the document with the title “Grounds on which Relief is sought” annexed to his supporting affirmation dated 28 November 2019, he replied that he could not recall the grounds and had nothing else to say.

Grounds for judicial review

27.  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).

28.  The contents of the document annexed to the applicant’s supporting affirmation with the title “Grounds on which Relief is sought” are reproduced as follows:-

“1. The Applicant believes that the Director(s) of Immigration and the Adjudicator of Appeal Board reached the decision wrongly in assessing his Non-refoulement claim. He believes that these decisions were not reasonable and unfair (as required by the Wednesbury test). Indeed, the right to life is protected under Article 28 of the Basic Law and Article 2 of the Bill of Rights. In practice, the right to life is mainly protected by the criminal law and it must be protected from extra-judicial killings such as the applicant may face if he would be deported to his country. In addition to this, the applicant believes that the Adjudicator failed to give him sufficient time and chance to arrange relevant evidence to his non-refoulement claim as well as his appeal.

2. From the Director’s Decision, it is evident that the director has failed to appreciate or give the proper importance or weightage to the presence of state Acquiescence in the Applicant’s case. This has indeed led to an unfair outcome of rejecting the Applicant’s non-refoulement claim. The applicant was tortured at the Behest and the state law enforcement agencies as well as those in the high ups of political circles. It is submitted that the state would be rendered liable to the applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence.

3. The Applicant submits that the Director has failed to take such argument into account or that the Director has failed to give enough weight to such argument before reaching the Decision. Further, the applicant submits that although the Director had listed relevant COIs which support the Applicant’s aversions that the police in his country would not be able to protect. The Director failed to consider or give enough weightage to those evidence and ruled otherwise.

4.  This was a clean case of unfair attitude shown by the Director which in itself is enough to render his Decision void. In Fact, the corruption and incompetency of the administration in his country is still a very serious problem. Various human rights organization has complied reports on the matter which stated testament to the applicant’s assertions. Further, the director has failed to attain the high standard of fairness required by the Wednesbury test in the decision with the arguments put forward above. As such, the decision of the director should be considered unreasonable in the scope of Public Law. The Applicant respectfully asks the Court to grant leave to the Applicant for judicial review.”

29.  The said document with contents as stated above was in fact used by many applicants in similar applications as their grounds for applying leave to judicially review the Board’s decisions.  It is like a template for such applicants and they just used the grounds stated therein without any regard to their own situations.  Nevertheless, as the applicant is relying on the above grounds to make the Leave Application, this court will still deal with the grounds as discussed below.

Discussion

30.  First of all, only the Board’s Decision is reviewable by judicial process and not the Director’s Decision, as there are established statutory procedures of appeal from the Director to the Board and the applicant had invoked those procedures.  The Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali [2018] HKCA 549).  Thus, apart from being made out of time, the Leave Application in respect of the Director’s Decision can be dismissed on this ground as well without further consideration.

31.  Some of the grounds that were contained in the document titled “Grounds on which Relief is sought” as mentioned above were directed at the Director.  As the Director’s Decision was superseded by the Board’s Decision and cannot be susceptible to judicial review as mentioned above, this court will therefore consider only those grounds directed at the Board in respect of the Board’s Decision.

32.  Paragraphs 2, 3 and 4 of the applicant’s grounds were directed at the Director.  Hence, they could not be used to challenge the Board’s Decision and can be simply ignored.  Thus, only paragraph 1 of the grounds is relevant to the Board’s Decision.

33.  In paragraph 1 of the grounds, the applicant alleged that the adjudicator of the Board reached the Board’s Decision wrongly and it was not reasonable and fair as required by the Wednesbury test.  However, the applicant did not state how or why the Board’s Decision was wrong, unfair and unreasonable.  It does not help the applicant to establish any ground by just mentioning the right to life either. 

34.  In any event, the Board did assess the applicant’s risk of right to life.  The Board in fact accepted the claimant’s account of what happened to him in Kolkata, bearing in mind the low standard of proof required.  However, the Board had carefully considered all the threats the applicant claimed to fear but found that none of his claims could substantiate a ground for non-refoulement protection.

35.  The applicant also complained in paragraph 1 of the grounds that the adjudicator failed to give him sufficient time and chance to arrange relevant evidence to his non-refoulement claim as well as his appeal.

36.  However, as can be seen from the Board’s Decision, the applicant applied for non-refoulement protection in 2012.  His claim was refused by the Director on 26 November 2016 and his appeal/petition was heard by the Board on 13 February 2017.  If the applicant did have anything to produce, he had had years to arrange for evidence in support of his non-refoulement claim before his appeal/petition came before the Board.

37.  In any event, if the applicant did indeed have further evidence to produce, he could and should have asked the Board for time to do so, but he did not.

38.  As held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”.  Thus, none of the aforesaid accusations in ground 1 could establish any valid ground to challenge the Board’s Decision when they are so vague and general without any requisite particulars related to the applicant’s case.

39.  It is therefore this court’s finding that the applicant has failed to establish any valid ground for challenging the Board’s Decision.

40.  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).

41.  In assessing the appeal by the applicant, the Board held an oral hearing on 13 February 2017 for the applicant to present his case to the Board in person. 

42.  The Board had in fact provided a very detailed analysis of the applicant’s claim and the reasons why it concluded that the applicant failed on all the applicable grounds under the USM to claim non-refoulement protection.

43.  The Board rejected the applicant’s account of the kidnap due to multiple significant inconsistencies in his story.  The applicant did not know whether the kidnappers were sent by his creditors, TMC or some other people, but yet he knew the names of all the three kidnappers.  However, he was inconsistent with the name of “X”, who allegedly saved and released him.  The medical treatment he subsequently received was also inconsistent with the alleged serious torture, namely that the kidnappers stabbed his left upper thigh with a dagger and twisted the blade before removing it.  Even assuming the kidnap did happen, the Board considered the applicant’s claimed threat from “X” too speculative to be identified as a possible ground for non-refoulement.

44.  The applicant’s fear of reprisals from TMC over his land appeared to the Board as a vacuous claim.  The Board considered it as just a dispute over property and, on the admission of the applicant, it could be resolved through the court system.  Hence, there was no ground for non-refoulement based on this fear.

45.  In relation to the applicant’s fear of harm from his creditors, the Board found that there was never any evidence of the threat by one of the creditors of kidnapping the applicant’s children being acted upon to any extent, and that the threat was merely empty words uttered for the effect and out of frustration.

46.  The Board also found the hearsay evidence that Saddan asserted that he had made the applicant and he would now destroy him as too vague a threat.  The argument and the fight took place in 2011.  The Board did not find it a real threat to the applicant of being “destroyed” on his refoulement.

47.  Further, the Board found from country of origin information (“COI”) that although there were problems with the Indian police force with corruption being the main evil, the government had been taking steps to improve the force and there were alternative avenues of redress for the citizens.  The Board found that the applicant had failed to prove, albeit on the low standard of proof required, that the Indian police force could not provide him reasonable protection against unlawful violence.

48.  Lastly, the Board did not see why the applicant, who was not old and had a lot of working experience, could not relocate to other parts of India without undue hardship if necessary.

49.  Hence, the applicant’s alleged danger and risks upon refoulement to India had been fully assessed but rejected the Board.

50.  The assessment of evidence, COI and risk of harm was primarily within the realm of the Board.  The Board was entitled to come to its own conclusion. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

51.  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. 

52.  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

53.  For reasons aforesaid, the Leave Application in respect of both the Director’s Decision and the Board’s Decision is dismissed for being made out of time and devoid 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