MALLICK MOHAMMAD KASHIF v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1303/2021

[2026] HKCFI 3371

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1303 of 2021

Application for Leave to Apply for Judicial Review

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

Following;

1.   The Form 86 be amended to name the Director of Immigration as a putative interested party and the Board as just a putative respondent; and

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

Observations for the Applicant:

1.  By a Form 86 filed on 16 September 2021, the Applicant sought leave for judicial review of a decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”) dated 24 August 2021 (“the Board’s Decision”).  The Board’s Decision was made after an oral hearing on 27 May 2021 of the Applicant’s appeal/petition from the Director of Immigration (“DI”)’s first-tier decision dated 30 November 2018 (“DI’s 2^nd Decision”) upon its assessment of all applicable grounds other than torture risk. DI assessed the Applicant’s torture risk in another earlier decision dated 24 January 2014 (“DI’s 1^st Decision”).  A copy of the Board’s Decision can be seen by the following hyperlink[1].  On my own motion, I amend the Form 86 as per paragraph 1 of the above order.

2.  The Applicant is an Indian national.  His claim for non-refoulment protection arose from a property dispute but he also alleged that one of his enemies had political connection.  The Board held a hearing, which the Applicant did not attend.  The Board proceeded to assess the applicable grounds (other than torture risk which had been previously assessed) and found them not made out.  The Board was not satisfied that the Applicant’s enemies would harm him should he return to India.      

3.  In the supporting affirmation of the Form 86, the Applicant stated that his appeal/petition to the Board was rejected without oral hearing.  But the Board’s Decision shows that one was arranged.  At paragraph 28 of the Board’s Decision, the Board explained the procedure of sending notice of hearing to the Applicant and the notice was not returned undelivered.  In fact, the Board did something further after the scheduled hearing, for which the Applicant was absent, to ensure procedural fairness: see paragraph 29 of the Board’s Decision.

4.  The Applicant bears the burden to show that it is reasonably arguable the Board’s process was unfair.  But he just made one bold assertion that no hearing was held to hear his appeal/petition, and adduced no evidence to prove, for example, that the notice of hearing was not actually issued or he had any reasonable excuse for not being able to receive the notice or to get to know the hearing date.

5.  There is no substance in the complaint about lack of hearing at all.  It is trite that judicial review is not a rehearing of the merits of a non-refoulement claim.  In the absence of any valid argument that the Board had committed a legal error, been irrational in its reasoning and conducted its procedure unfairly, this Court cannot intervene.      

6.  I have also considered the Board’s Decision vigorously, but am unable to detect any reasonable argument that it should be quashed.  This application for leave to apply for leave is therefore 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