AHMMAD MD MUNSUR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

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

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 30 September 2021 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against the decision made by the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office (the “Board”) on 26 August 2021 (the “Board’s Decision”).

2.  The Applicant requested an oral hearing for the Leave Application. The hearing took place on 12 January 2026.  Notice of Hearing was issued to the Applicant at the address provided by the Applicant on the Form in advance, which is also the address of the Applicant as confirmed by the Immigration Department.  The Applicant was further reminded of the hearing on 9 January 2026 by phone and the Applicant said “okay”.  The Applicant however did not attend the hearing on 12 January 2026.

3.  As the Notice of Hearing was properly served at the address provided by the Applicant to the Court and to the Immigration Department, I consider it appropriate to proceed with the Leave Application in the absence of the Applicant.

Background

4.  The Applicant’s background, the basis of his claim and the arguments he advanced had been set out in detail 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, a postmortem report and a first information report.  There is no application to adduce these reports as further evidence.  The Applicant has not explained the nature of the reports, and how and when he came to obtain the same.  I note that both reports seem to be available long before the date of the Board’s Decision.  It is not clear whether these documents are the same as the document submitted by the Applicant to the Board (see §38 of the Board’s Decision).  The Applicant has equally failed to explain the relevance of these reports to the Leave Application.  In the premises, this Court is not in a position to consider these reports.   

7.  I have considered the Board’s Decision in detail.  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 entitled to reject the Applicant’s claims based on its evaluation of the evidence and the reasoning provided (§§54-59, 66, 69-77, 81, 86-88 of the Board’s Decision).  I do not see any errors committed by the Board.  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 to the Board’s Decision is reasonably arguable with any realistic prospects of success.

8.  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

9.  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