MASIH ROBIN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 104/2025

[2025] HKCFI 3291

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 104 of 2025

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and the Applicant being absent in open court;

The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By prescribed Form 86 filed on 8 January 2025, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 13 December 2024 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 25 September 2024 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on all applicable grounds. The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL000104_2025_files/the_Board's_Decision.pdf

2.  The basis of the applicant’s claim was that he would be harmed or killed by Zorawar, the local chairman of the Aam Aadmi Party due to the applicant’s support for the rival Congress Party. The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them. Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

3.  Pursuant to the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 18 July 2025. A notice of hearing with a reminder[1] of the consequence of absence dated 17 June 2025 was sent to the applicant’s last known address by ordinary post. The applicant did not turn up at the hearing. Before the hearing, phone calls were made to the applicant’s given telephone number, which turned out to be an invalid number. The information before this court shows that the said notice of hearing has not been returned undelivered through the post.

4.  In the circumstances, this court will dispose of the Leave Application according to the materials already placed before the court.

Discussion

5.  A leave application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[2] It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

6.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[3], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

7.  In his Form 86, the applicant raised the following grounds for judicial review:

(a)  The Board’s Decision was unreasonable and unfair;

(b)  Insufficient importance or weight was given to state acquiescence;

(c)  Though the Director listed relevant country of origin information (“COI”) that supported the applicant’s belief that the police in his country would not be able to protect him, such COI was not considered or given enough weight;

(d)  The Director showed an unfair attitude;

(e)  The Board’s Decision was irrational as it was based on its findings which should have led to the Board allowing the appeal.

8.  As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality.[4] In the present case, the Board rejected the claim because the applicant’s injuries did not attain the required level of severity, and the risk he faced was of a localized nature. Thus, the Board concluded that there was no real risk of harm. The Board also found that internal relocation would be viable. These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

9.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness. Most of the applicant’s written grounds are not concerned with the Board’s Decision. For those concerning the Board’s Decision, they are vague and do not condescend to particulars. The applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision. The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[5].

Order

10.  The applicant’s application for leave to apply for judicial review 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