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

HCAL 3674/2019

[2025] HKCFI 1138

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3674 of 2019

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.  Form 86 be amended as follows:- the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office be named as the Putative Respondent; and

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

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 10 December 2019 (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 5 December 2019 (the “Board’s Decision”).

2.  In the Form, the Applicant has named the Board / the Director of Immigration (the “Director”) as the proposed respondents.  As it is trite that the Board should be the proposed respondent whereas the Director should be the proposed interested Party, I make an order to amend the same accordingly on the court’s own motion.

3.  The Applicant had requested for an oral hearing for the application. The hearing took place on 4 March 2025 and the Applicant attended the hearing in person. 

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 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.  In the Form, the Applicant simply alleged that the Board Decision was unreasonable and that his claim and documents were not carefully considered. These are vague assertions without particulars or elaboration.  The Applicant has not particularized, let alone demonstrated, how the Board had acted unreasonably, or how the Board had failed to consider any particular points or documents.  In the premises, I do not consider these grounds reasonably arguable.

7.  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.  It 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.

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, as well as the grounds advanced by the Applicant.

9.  At the hearing on 4 March 2025, the Applicant indicated that he filed the Leave Application because he did not want to return to his country at the time.  However, he indicated that he now wants to go back.  When asked whether he intends to discontinue the application accordingly, the Applicant answered in the affirmative. I note however that no formal application has been made to discontinue the Leave Application.  In light of this, and in view of what I have stated above, the proper course for the Court to do is to dismiss the Leave Application.  (See Manik MD Mahamudun Nabi [2022] HKCA 471, at §19)

Conclusion

10.  In the premises, I make an order that the Form be amended as described above and 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/2019/HCAL003674_2019_files/the_Board's_Decision.pdf