ASIF MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1173/2025

[2025] HKCFI 6333

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1173 of 2025

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 Applicant being absent in open court;

Application for Leave to apply for Judicial Review be struck out.

Observations for the Applicant:

THE APPLICATION

1.  The applicant was an illegal immigrant and had made non-refoulement claim to the Director of Immigration (“the Director”). By the Director’s Decision dated 28 February 2015 (“the Director’s 1^st Decision”), the Director refused his claim on Torture risk, BOR 3 risk and Persecution risk.[1]

2.  The applicant appealed to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”). By Decision dated 20 March 2017, the Board dismissed his appeal.

3.  By a letter dated 11 April 2017, the Director invited the applicant to submit additional facts relevant to his claim for a re-assessment of his claim under the applicable risks, including BOR 2 risk[2]. The Director advised him that he would make the assessment by 25 April 2017, taking into account any additional facts he might submit.

4.  The applicant failed to submit any additional facts. By Notice of Further Decision dated 17 May 2017 (“the Director’s 2^nd Decision”), the Director re-assessed the applicant’s claim, including BOR 2 risk and dismissed his claim on all applicable risks. In the Director’s 2^nd Decision, the Director advised the applicant that if he was aggrieved by the Director’s 2^nd Decision, he might lodge a further petition to the Board within 14 days from the date of the Director’s 2^nd Notice.

5.  Instead of following the Director’s 2^nd Decision to lodge further petition to the Board, the applicant issued Form 86 dated 20 May 2025 for leave for apply for judicial review of the Director’s 2^nd Decision.

6.  He asked for a hearing. The case is fixed to be heard on 22 December 2025. However, the applicant has filed a summons to apply for withdrawal of his application. For the reasons below, the application should be struck out and the hearing date be vacated.

7.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

DISCUSSION

8.  The applicant has no dispute to the facts above in his affirmation in support of his application.

9.  In my view, the applicant’s application should be struck out for the reasons below.

10.  First, the applicant’s application is an abuse of the administrative structure for processing of torture claims. The Court of Appeal in Re: Moshsin Ali [2018] HKCA 549, Hon Lam VP and McWalters JA, 24 August 2018 held:

“43. It is clear that what is provided for by the Immigration Ordinance is a two tier administrative structure for the processing of torture claims. The first tier is by an immigration officer and the second tier by a member of the board who will often, if not usually, be a legally qualified person and may be a former judge or magistrate.

45. All of these features persuade us that what is intended by this structure is that the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. For these reasons we are of the view that the judge was correct to conclude that the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”

11.  Second, as the applicant has not disputed the Director’s 1^st Decision, which dealt with his claim on BOR 3 risk, the Director’s 1^st Decision has become final after the expiration of the appeal period as provided by the Ordinance. The applicant would have no arguable case for the BOR 2 risk as the Court of Appeal in Kulwinder Kaur v Director of Immigration and Torture Claims Appeal Board/Non‑refoulement Claims Petition Office [2022] HKCA 48, Hon Chu, JA (as she then was), Barma JA and Au JA ,7 January 2022, held:

“59. … upon determining that there is no BOR 3 risk, there is no arguable ground for any BOR 2 risk: see AA v Sweden (2017) 64 EHRR 20 at [52] and [96]; RM v Gerard Paul Muttrie Esq (unrep., HCAL 166/2015, 3 March 2016) at [52].”

CONCLUSION

12.  For the above reasons, I strike out the applicant’s application. The hearing on 22 December 2025 is vacated.

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