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HCAL 3516/2019
[2025] HKCFI 5062
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3516 OF 2019
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BETWEEN
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Mohammed Sabir |
Applicant |
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and |
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Torture Claims Appeal Board |
Putative |
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Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for leave to apply for judicial review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)
Following:
Order by Deputy High Court Judge Michael WONG:
1. On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board” and the name of the putative interested party be amended to “Director of Immigration”.
2. The applicant’s application for leave to apply for judicial review be dismissed.
Observations for the applicant:
The Leave Application
1. By way of Form 86 dated and filed on 27 November 2019, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 20 November 2019 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003516_2019_files/the_Board's_Decision.pdf
2. The Board found that the applicant was not entitled to non-refoulement protection on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board dismissed the applicant’s appeal/petition and confirmed the decision of the Director of Immigration (“the Director”) dated 19 September 2017, which rejected the applicant’s non-refoulement claim.
Amendments
3. The applicant named “TORDUR CLAIM APPEAL BORAD NON. REFOULMENT PETITION OFFICE” as the putative respondent and himself as the putative interested party in Form 86.
4. In fact, only the Board should be the putative respondent and the Director should be the putative interested party.
5. The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board and should not be named as a putative respondent at all.
6. Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and to amend the name of the putative interested party to “Director of Immigration”.
The applicant’s case
7. 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.
8. In sum, the applicant claimed for non-refoulement protection because if returned to India, his neighbour Taslim would harm him as the applicant had cut Taslim’s right forearm with a rod during a fight when Taslim trespassed into the applicant’s land. Taslim allegedly threatened the applicant’s wife that he would take revenge against the applicant and would cut the applicant’s forearm. According to the applicant, he had been attacked by three of Taslim’s men and he was hit on his head, ears, left arm and back with rods and hockey sticks.
Oral hearing
9. The applicant requested for an oral hearing of the Leave Application. However, he was absent at the hearing on 7 August 2025.
10. As held in Re Abdus Salam [2019] HKCA 1091, an application for leave to bring judicial review should not be dismissed for want of prosecution merely because the applicant failed to attend the oral hearing of the leave application. The correct approach is to treat the applicant as having withdrawn the request for a hearing by reason of the absence at the hearing, and to proceed to determine the leave application on its merits.
11. Thus, this court will proceed to consider the merits of the Leave Application based on the written materials before this court.
Grounds for judicial review
12. 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).
13. However, the applicant failed to advance any grounds for his intended judicial review in Form 86, nor in his supporting affirmation dated 27 November 2019. He merely stated in his supporting affirmation that he was not satisfied with the decision of the immigration and his life was still in danger in his own country.
Discussion
14. 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).
15. Thus, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any valid ground being advanced by the applicant for the intended judicial review.
16. In assessing the appeal by the applicant, the Board held an oral hearing on 9 October 2019. The applicant was present and was given the chance to present his case to the Board in person.
17. As can be seen from the Board’s Decision, the Board gave very full and detailed reasoning for rejecting the applicant’s claim for non-refoulement protection. The Board was of the view, and the applicant agreed, that the dispute in question was purely private and that neither the government nor any public body and/or organization was involved. The applicant did not provide evidence as to his alleged reports to the police, his ownership of the property in dispute, or any medical reports regarding the alleged injuries.
18. The inconsistencies in the applicant’s evidence also cast doubt on the credibility of his claims. The Board found the applicant’s written claim that Taslim had occupied the entire house including the land and his oral testimony that his wife and children were still living in the house contradictory. The Board found the applicant’s explanation during the Board’s hearing that Taslim occupied only the land and not the house was just to get around the Board’s question about the whereabouts of his wife and children.
19. The Board opined that the applicant failed to satisfy the requirements of “torture”. The alleged attacks by and/or caused by Taslim were not severe and did not fall within the definition of “torture” under section 37U of the Immigration Ordinance. There was no documentary proof of the alleged attacks and the injuries allegedly caused to the applicant. The Board also found that even if the risk of Taslim’s intended revenge to injure the applicant’s arm existed, such threatened act fell short of a minimum level of severity. Furthermore, the applicant had not shown any persecution risk at all.
20. Moreover, the Board found from country of origin information (“COI”) that India offered state protection and assistance to people who were at risk. Police effectiveness was improving and remedies were available for any police misconduct. The Board did not accept that it would not be possible for the applicant to live safely in another area of India given that he had successfully left from one place to another in India prior to him entering Hong Kong illegally.
21. Thus, the applicant’s alleged danger in returning to India was fully assessed but rejected by the Board.
22. The assessment of evidence, COI and risk of harm was solely within the ambit of the Board. The Board was entitled to make its decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.
23. 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.
24. 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
25. For reasons aforesaid, the Leave Application is dismissed.
Dated the 23rd day of October 2025
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( Irene LEE )
for Registrar, High Court
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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 his 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/Handed to the applicant/the applicant’s solicitors
on: 23 October 2025
Applicant’s ref. no:
Nil |
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Sent/Handed 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: 23 October 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 8614/17/9/286/IN1635
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 1937/17
(formerly RBCZ 10149/15)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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