SHAIKH KASIM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 137/2021

[2025] HKCFI 5578

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 137 of 2021

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;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 8 February 2021 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against the decision of the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (the “Board”) dated 12 January 2021 (the “Board’s Decision”).

2.  The Applicant requested an oral hearing for the Leave Application. The hearing took place on 20 October 2025 and the Applicant attended in person. At the hearing, the Applicant requested more time to gather further evidence. I asked the Applicant what evidence he intended to gather and why such evidence was not obtained and adduced earlier. In response, the Applicant simply said the evidence would show that there are a lot of problems in India. He however did not explain why such evidence was not adduced earlier. In the absence of proper application and explanation for the delay, and without proper explanation on the precise evidence he wanted to gather and the relevance thereof to the Leave Application, I refused the Applicant’s oral request for more time.

3.  Save as the above, the Applicant indicated that he had nothing to say in respect of the Leave Application.

Background

4.  The Applicant’s background, the basis of his claim and the arguments he advanced had been set out 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

5.  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 of Immigration (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 or procedural unfairness or irrationality in the decision of the Board. (See Nupur Mst v Director of Immigration [2018] HKCA 524, at §14)

6.  The Applicant provided a number of grounds in support of the Leave Application in the Form and in the supporting Affirmation, which can generally be summarized as follows:-

(1)  The Board was in breach of procedural fairness.

(2)  The Board had unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that it did not satisfy the requirement.

(3)  The Board had acted in a procedurally unfair manner in dealing with the Applicant’s appeal.

(4)  The Board’s decision to refuse the Applicant’s appeal was unreasonable or irrational in the public law sense, or was a result of procedural errors or unfairness.

(5)  The Board had failed to meet the greater care and duty owed to a self‑represented claimant.

(6)  The Applicant was not given a fair opportunity to “keep forward” his submissions in an oral hearing nor was he invited to submit written submissions.

(7)  The Board had significantly relied on the source of news which is not officially recognized or is simply hearsay. The Board had also relied on cases which are fairly outdated considering the dramatic changes. This had resulted in the Board making groundless speculations that it would be safe for the Applicant to return back to his country of origin.

7.  I do not consider any of the above Applicant’s contention meritorious. I shall briefly set out my reasons below.

8.  In relation to points (1) to (5), and (7), these grounds are nothing but vague assertions without particulars or elaboration. The Applicant has not particularized, let alone demonstrated, how the Board had acted unlawfully, unfairly, unreasonably or irrationally as alleged. The Applicant equally failed to identify what source of news or cases relied upon by the Board was/were alleged to be “not officially recognized”, hearsay or outdated. In the premises, I do not consider any of these grounds reasonably arguable.

9.  In addition, in relation to point (5), the Court of Appeal has repeatedly held that neither the high standard of fairness laid down in Secretary for Security v Sakhevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 2007 prescribed that a claimant under Convention Against Torture (CAT), or a claimant under Articles 2 or 3 of Section 8 of the Hong Kong Bill of Rights Ordinance (Cap. 383) or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Ahmed Syed Rafiq [2018] HKCA 178, at §22. In the present case, the Applicant was provided a fair opportunity to present his case before the Board on 23 November 2020. However, the Applicant refused to answer any questions from the Board (§§16-17 of the Board’s Decision). I do not find anything amiss arising from the alleged lack of legal representation in the process before the Board. I also note that at the hearing before the Board, the Applicant did not raise any complaint about the lack of legal assistance. One can also see from the Board’s Decision that the Board had specifically explained and warned the Applicant of the consequences if he refused to answer questions from the Board given the Applicant was not represented (see for example §§16-17 of the Board’s Decision). In any event, the Applicant has not particularized or explained how the Board has failed to treat the Applicant fairly during the process.

10.  In relation to point (6), the Applicant’s contention is wholly unmeritorious. A hearing was held on 23 November 2020 before the Board to provide the Applicant an opportunity to present his case and answer questions from the Board. However, the Applicant refused to answer any questions from the Board in the said hearing (§§16-17 of the Board’s Decision).

11.  Having fully considered the Board’s Decision. 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 perfectly entitled to reject the Applicant’s case based on the evidence, in particular in the light of the Applicant’s decision not to answer any questions from the Board to address the Board’s concerns (§§16-17, 19-42 of the Board’s Decision). The Board’s Decision satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational. There is plainly no basis to say that the Board had failed to assess the Applicant’s claims properly.

12.  In the premises, I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success. Accordingly, I refuse to grant leave for judicial review.

13.  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, as well as the grounds advanced by the Applicant.

Conclusion

14.  In the premises, I make an order that the Leave Application be dismissed.

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