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HCAL 3755/2019
[2025] HKCFI 1430
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3755 of 2019
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Md Kamal alias Kamal alias Bahar |
Applicant |
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and
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
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Putative Respondent |
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and
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Director of Immigration
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Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)
Following;
Order by Deputy High Court Judge (Non-refoulement Claims) Philips Wong:
1. Form 86 be amended as follows:- (1) the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office be named as the 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 17 December 2019 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against: (1) the Decision of the Director of Immigration (the “Director”) dated 16 October 2018 (the “Director’s Decision”); and (2) the decision of the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office (the “Board”) dated 4 December 2019 (the “Board’s Decision”).
2. The Director’s Decision had been superseded by the Board’s Decision.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, the Leave Application in relation to the Director’s Decision fails in limine and is dismissed.
3. In the Form, the Applicant has named both the Director and the Board as the proposed respondents and the proposed interested parties (in addition, the Applicant has also named USM as another interested party). This is misconceived. It is trite that the Board should be the proposed respondent whereas the Director should be the proposed interested party in an application of this sort. I accordingly make an order to amend the Form on the court’s own motion.
4. The Applicant had requested an oral hearing for the application. The hearing took place on 12 March 2025. The Applicant attended in person. The Applicant however indicated that he had nothing to say at the hearing.
Background
5. 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
6. 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)
7. In the Form, the Applicant simply alleged that the Board’s Decision was unreasonable and that his claim was not carefully considered. In the supporting Affirmation, the Applicant further claimed that the Board had failed to consider all the matters raised in his claims, and/or give adequate reasons for the decision.
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. I note that the Applicant has also failed to identify any matters which the Board was alleged to have failed to take into account. Contrary to the contention of the Applicant, 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. 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, as well as the grounds advanced by the Applicant.
Conclusion
10. In the premises, I make an order that the Form be amended as described above and the Leave Application be dismissed.
Dated the 11th day of April 2025
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(Alfred Chan) |
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for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted
(Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave
(Order 53, rule 6(5)).
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Sent to the Applicant
on 11/4/2025
Md Kamal alias Kamal alias Bahar
Applicant’s ref. no:
Nil |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 11/4/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 14078/18/10/420/B1631
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 3355/18 (formerly RBCZ 2000730/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1]
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003755_2019_files/the_Board's_Decision.pdf
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