MEHMOOD MUDASSAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2223/2020

[2025] HKCFI 5219

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2223 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 the Applicant being absent in open court;

1.  Form 86 be amended as follows:- (1) the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office be named as the only Putative Respondent; and (2) the Director of Immigration be named as the Putative Interested Party.

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

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 6 November 2020 (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 23 October 2020 (the “Board’s Decision”).

2.  In the Form, the Applicant named both the Board and the Director of Immigration (the “Director”) as the proposed respondents. The Applicant further named the Board as the proposed interested party. As it is trite that the Board should be the proposed respondent and the Director should be the proposed interested party in an application of this sort, I also make an order to amend the Form on the court’s own motion.

3.  The Applicant requested an oral hearing for the application. The hearing was originally scheduled to take place on 8 September 2025. Notice of Hearing was issued to the Applicant in advance at the address provided by the Applicant on the Form on 18 August 2025. The Immigration Department has also confirmed by its letter dated 17 September 2025 that this is the address provided by the Applicant. On 4 and 5 September 2025, attempts were also made to contact and remind the Applicant of the hearing by phone at the number provided by the Applicant on the Administrative Form and on Form No. 8 but it was discovered that no such phone number was registered. Eventually due to the Tropical Cyclone Warning Signal hoisted on 8 September 2025, the hearing was adjourned to the next day, i.e. 9 September 2025. Attempt was again made to remind the Applicant of the hearing on 9 September 2025 by phone on 8 September 2025 but in vain. The Applicant did not attend the hearing. In the premises, as proper notice of the hearing had been given to the Applicant, 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 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, the Applicant did not provide any grounds in support of the Leave Application. In the supporting Affirmation, the Applicant stated that he wanted to apply for judicial review in respect of both the Board’s Decision and the decision of the Director dated 19 November 2018. No grounds were provided in support of the Leave Application.

7.  The Director’s said decision had already been superseded by the Board’s Decision. The Director’s decision is not 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 in relation to the Director’s said decision, the application fails in limine and is hereby dismissed.

8.  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 very comprehensive with adequate reasons provided. The Board was entitled to reject the Applicant’s claims based on the evidence and the reasoning provided (§§73-114 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 of the Board’s Decision is reasonably arguable with any realistic prospects of success.

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 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