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

HCAL 579/2020

[2025] HKCFI 2319

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 579 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.   The Applicant’s application for adjournment made on 12 May 2025 be refused.

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

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 9 April 2020 (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 2 March 2020 (the “Board’s Decision”).

2.  The Applicant requested an oral hearing for the application.  The hearing took place on 12 May 2025 and the Applicant attended in person.  At the hearing, the Applicant told the court that he did not remember what the present application was about and asked the court to explain to him.  I told the Applicant that this was his application for leave to apply for judicial review against the Board’s Decision, and specifically this was the hearing he requested.  I further told the Applicant that it was his responsibility to prepare for the hearing he requested, and the court would not waste time to explain to him the details of the application.  In response, the Applicant requested an adjournment of the hearing.  I asked the basis of the adjournment and the Applicant simply said the problem still exists in his country.   

3.  In the light of what I said above, and that no valid basis or reason had been put forward by the Applicant in support of the request for adjournment, I see no reason to adjourn the Leave Application and the application is refused.

Background

4.  The Applicant’s background, the basis of his claim and the arguments he advanced had been set out in details 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, procedural unfairness or irrationality in the decision of the Board.  (See Nupur Mst v Director of Immigration [2018] HKCA 524, at §14)

6.  In the Form and in the supporting Affirmation, the Applicant did not provide any grounds in support of the Leave Application.  In the supporting Affirmation, the Applicant simply attached the Board’s Decision, but he indicated that he wanted to apply for judicial review against both the Board’s Decision and the decision of the Director below.

7.  The Director’s decision dated 28 December 2017 had been superseded by the Board’s Decision.  The Director’s decision is not a decision susceptible to judicial review once an appeal to the Board had been pursued (see Re: Moshsin Ali [2018] HKCA 549, at §§31-45).   Accordingly, in so far as the Applicant seeks leave to apply for judicial review against the Director’s decision, such application fails in limine and is dismissed. 

8.  I have considered the Board’s Decision in details.  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.  In particular, the Board had thoroughly considered the Applicant’s claims and the evidence, and was entitled to find the Applicant not to be a credible witness and reject his claims (§§50-60 of the Board’s Decision).  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.  Accordingly, I refuse to grant leave for judicial review.

9.  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.    

Conclusion

10.  In the premises, I refuse the Applicant’s application for adjournment, and 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

[1] https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000579_2020_files/the_Board's_Decision.pdf