MUSTAQUE AHMED v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 645/2020

[2025] HKCFI 3067

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 645 of 2020

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court

1.   Form 86 be amended on the court’s own motion as follows:-

(i)   the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office be named as the Putative Respondent

(ii)  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.  This is an application dated 15 April 2020 by Mr. Mustaque Ahmed (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Non‑refoulement Claims Petition Office (“Board”) dated 25 March 2020 (“Board’s Decision”)[1] when the Board affirmed the decision of the Director of Immigration (“Director”) dated 18 October 2018 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

Background of the Applicant

2.  The Applicant is Indian.  He was born on 11 September 1969 in Kolkata, India.  He was formerly engaged in the business of supplying school uniforms.

The Claim

3.  The Applicant relied on the following for his claim:-

(i)   In mid-2014, he was awarded a contract to supply uniforms for a school in Orrissa.  To finance the transaction, he took out a loan (the “Loan”) from a creditor (“Creditor”) who was a supporter of the Bharatiya Janata Party (“BJP”) which was a powerful political party.

(ii)  He was unable to repay the Loan.  After the Applicant came to Hong Kong on or about 23 August 2015, he was told by his wife that the Creditor came to his home in India a few times to harass his family and threatened to cause harm to him and his family.

Procedural history

4.  As mentioned above, the Applicant arrived in Hong Kong on or about 23 August 2015.  He overstayed and eventually surrendered to the Immigration Department on 8 September 2015.

5.  The Director had considered the Claim on all applicable grounds under the United Screening Mechanism (“USM”), namely:

(i)    risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (“torture risk”);

(ii)   risk of violation of right to life as a non-derogable and absolute right under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“BOR”) (“BOR 2 risk”);

(iii)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the BOR (“BOR 3 risk”); and

(iv)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

6.  By the DOI Decision, the Director refused the Claim.  The Applicant later filed an appeal/petition to the Board (“Appeal”).  By the Board’s Decision, the Board affirmed the DOI Decision.  The Board rejected and dismissed the Appeal.

7.  On 15 April 2020, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the Board’s Decision.  The Applicant filed his supporting affirmation on the same day (“Supporting Affirmation”). 

8.  In the Form 86, the Applicant has named the adjudicator of the Board as the proposed respondent and the Board as the proposed interested party.  As per usual practice that the Board should be the proposed respondent whereas the Director of should be the proposed interested party, I make an order to amend the Form 86 accordingly on the court’s own motion.

The DOI Decision

9.  In the DOI Decision, the Director rejected the Claim on all applicable grounds for (amongst others) the following reasons:-

(i)    There was insufficient evidence to establish on substantial ground that the Applicant faces a genuine and foreseeable risk of serious harm if he were to be returned to India.  The Director also noted that the Applicant’s family did not relocate to other places despite living in the same neighbourhood as the Creditor.

(ii)   Referring to Country of Origin (“COI”) information research materials, the Director also took the view that there was reasonable state protection available to the Applicant.

(iii)  It was also assessed that the reasonable internal relocation alternatives were available.

The Board’s Decision

10.  As can be seen from the Board’s Decision, the Board rejected the claim for the following reasons:-

(i)    The intensity and frequency of past ill-treatment by the Creditor was low given the lack of evidence showing that the Creditor had the intention to seriously harm or kill the Applicant or his family members (§§28-29).

(ii)   According to COI information, sufficient state protection was available. The Board found that the Applicant had failed to seek assistance from Indian police and rejected the Applicant’s assertion of the Creditor’s alleged influence over local police (§§30-33).

(iii)  The Board rejected the Applicant’s assertion that he was unable to relocate to other places India because the Creditor would be able to locate him given that India is a large country with various options for relocation.  The Board also took into account that, given the Applicant’s background, he would be able to reasonably relocate to elsewhere in India (§§41-47).

11.  The Board concluded that the Applicant had failed to establish his case on all applicable grounds under the USM.  The Board affirmed the DOI Decision and dismissed the Appeal.

Legal principles applicable to judicial review

12.  In a judicial review, the court does not step into the shoes of the decision makers.

13.  In Nupur Mst v Director of Immigration [2018] HKCA 524, the Court of Appeal reiterated at §14(1) that:

“The role of the court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non‑refoulement] 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 and COI materials and 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”.

14.  In Po Fun Chan v Winnie Cheung (supra), the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

15.  The oral hearing of the present application (“Hearing”) took place before me on 14 July 2025 and the Applicant attended in person.  At the hearing, he confirmed with me that there was nothing more he would like to add to his application.

16.  The Applicant did not advance any grounds for his intended judicial review in the Form 86 and the Supporting Affirmation.  In the Supporting Affirmation, the Applicant only exhibited the Board’s Decision and the DOI Decision without other supporting documents.

17.  No proper ground for his intended challenge was stated in the Form 86 and/or the Supporting Affirmation.  The Applicant did not provide any particulars or specifics as to what are the reviewable errors in the Board’s Decision, or in what way was the Board’s Decision unfair or Wednesbury unreasonable or that the Board had acted in procedurally unfair or irrational manner, or how did the Board take into account irrelevant matters or fail to take into account relevant matters. 

18.  Having rigorously examined the Board’s Decision and the DOI Decision with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM and observed high standards of fairness.   

19.  It was on such basis that the Board found that the Applicant had failed to prove his entitlement to non-refoulement protection for any of the torture risk, BOR 2 risk, BOR 3 risk or persecution risk under the USM.  These are findings of fact which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such finding involved error of law, procedural unfairness or irrationality. The Board’s Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  The proposed judicial review has no realistic prospects of success.  

Conclusion

20.  In the premise and having considered the Board’s Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review.

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