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HCAL 2437/2020
[2025] HKCFI 5382
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2437 of 2020
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Imam Zafar |
Applicant |
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and |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
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and |
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Director of Immigration |
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 Torture Claims Appeal Board / Non‑refoulement Claims Petition Office be named as the only Putative Respondent; and (2) the Director of Immigration be named as the Putative Interested Party.
2. The application for leave to apply for judicial review be dismissed.
Observations for the Applicant:
Introduction
1. By Form 86 filed on 14 December 2020 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against the decision made by the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office (the “Board”) on 13 November 2020 (the “Board’s Decision”).
2. In the Form, the Applicant named both the Board and the Director of Immigration (the “Director”) as the proposed respondents. The Applicant further named the Board as the proposed interested party. As it is trite that the Board should be the proposed respondent and the Director should be the proposed interested party in an application of this sort, I make an order to amend the Form on the court’s own motion.
3. The Applicant requested an oral hearing for the application. The hearing was originally scheduled to take place on 8 September 2025. Notice of Hearing was issued to the Applicant on 21 August 2025 at the address provided by the Applicant on the Notice of Change of Address filed on 22 July 2024. There is no question that the Applicant had received the Notice of Hearing before 8 September 2025, as the Applicant had subsequently written to the Court and indicated that he could not attend the hearing on 8 September 2025 because of the typhoon (see below).
4. On 4 and 5 September 2025, attempts were also made to contact and remind the Applicant of the hearing by phone at the number provided by the Applicant on the Administrative Form and on Form No. 8 but in vain. Eventually due to the Tropical Cyclone Warning Signal hoisted on 8 September 2025, the hearing was adjourned to the next day, i.e. 9 September 2025. Attempt was again made to remind the Applicant of the hearing on 9 September 2025 by phone on 8 September 2025 but in vain. The Applicant did not attend the hearing.
5. On 31 October 2025, the Court received 2 letters with similar contents from the Applicant. In the letters, the Applicant said he received the Notice of Hearing very late. He said he could not attend the hearing on 8 September 2025 because of the typhoon. The Applicant requested for another hearing. The Applicant did not explain why he did not attend the adjourned hearing on 9 September 2025.
6. The Court has publicized the standard arrangement of hearings in case the scheduled hearings cannot proceed because of the weather. The Applicant has the duty to find out what would happen to the hearing on 8 September 2025 in case of typhoon. Further, the Court had taken the extra step to try to remind the Applicant of the adjourned hearing by the number provided by the Applicant. However, the Applicant could not be reached by the number for reason unknown to the Court.
7. The letters to request for another hearing were issued almost 2 months after the hearing. The Applicant has not explained the delay. Further, the Applicant has not explained precisely what he intends to say in the hearing in the letters, given that all the grounds should have been included in the Form or in the supporting Affirmation.
8. Given the above, I consider it appropriate to proceed with the Leave Application in the absence of the Applicant.
Background
9. The Applicant’s background, the basis of his claim and the arguments he advanced had been set out in detail 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
10. 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, procedural unfairness or irrationality in the decision of the Board. (See Nupur Mst v Director of Immigration [2018] HKCA 524, at §14)
11. In the Form, the Applicant did not provide any grounds in support of the Leave Application. In the supporting Affirmation, the Applicant stated the following in support of the Leave Application:-
(a) The Applicant’s life is in danger in India.
(b) It is the Applicant’s fundamental human right not to be subjected to torture. As such, high standards of fairness are required.
(c) The Board had acted in a procedurally unfair manner in dealing with the Applicant’s application without properly assessing the credibility of the Applicant.
(d) The Board’s Decision is Wednesbury unreasonable.
12. None of the above contentions are meritorious. In respect of the first point, the Board had duly considered the Applicant’s evidence and concluded that “the evidence does not suggest that [the Applicant’s alleged enemies] had any real intention to hurt and/or kill the Appellant” (§§47-54 of the Board’s Decision). The Board was entitled to come to that conclusion based on the evidence. I see no errors committed by the Board in this regard.
13. In respect of the second point, there is no dispute that the high standard of fairness is required to consider the claims of this sort. However, the Applicant has completely failed to provide particulars to show how the Board was said to have failed to observe such standards, or that the Board had treated the Applicant unfairly. Accordingly, the complaint is without substance.
14. In respect of the third point, contrary to the Applicant’s contention, the Board had duly considered the credibility of the Applicant’s claims (§§46-54 of the Board’s Decision). As I have indicated above, I see no errors committed by the Board in this regard.
15. In respect of the last point, the Applicant’s contention is simply a bare assertion without particulars in support.
16. I have considered the Board’s Decision in detail. 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 comprehensive with adequate reasons provided. The Board was entitled to reject the Applicant’s claims based on the evidence and the reasoning provided. I do not see any errors committed by the Board. The Board’s Decision satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational. I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success.
17. 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 and the grounds relied upon by the Applicant.
Conclusion
18. In the premises, I make an order that the Form be amended as described above and the Leave Application be dismissed.
Dated the 12th day of November 2025
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(Allen LEE) |
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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 12/11/2025
Imam Zafar
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 12/11/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 9956/18/1/229/IN1872
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 530/17 (formerly RBCZ 3001640/14) (T5S98)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL002437_2020_files/the_Board's_Decision.pdf
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