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

HCAL 454/2020

[2025] HKCFI 2365

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 454 of 2020

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 oral submissions by the Applicant in open court;

The Leave Application be dismissed.

Introduction

1.  By prescribed Form 86 filed on 19 March 2020, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decisions of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 24 January 2020 (“Board’s Decision”) dismissing the applicant's appeal against the decisions of the Director of Immigration (“Director”) dated 24 March 2017 (“Director’s Decision”) rejecting the applicant's non-refoulement claim under BOR 2 risk[1]. The Board’s Decision can be viewed at the following hyperlinks: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000454_2020_files/the_Board's_Decision.pdf

2.  The basis of the applicant’s claim was that he would be harmed or killed by his former business partners who blamed him for the loss of goods in the course of trade. 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.  At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 24 April 2025. The applicant attended the hearing in person. After having heard from him, this court informed him that the decision would be reserved, and be sent to his updated address.

Discussion

4.  The 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.

5.  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.

6.  The applicant’s Form 86 and supporting affirmation raised a number of grounds for seeking relief, which can be summarized as follows.

(a)  The Board unlawfully fettered its discretion by refusing the applicant’s appeal on the grounds that it did not satisfy the requirement;

(b)  The Board acted in a procedurally unfair manner in dealing with the applicant’s appeal;

(c)  The Board’s refusal of the applicant’s appeal was unreasonable or irrational, or was a result of procedural errors or unfairness;

(d)  The Board failed to meet the greater care and duty owed to a self-represented claimant;

(e)  The Board significantly relied on news sources that are not officially recognized or are hearsay, and on outdated cases;

(f)  The applicant was not given a fair opportunity to make submissions in an oral hearing, nor was he invited to submit written submissions.

7.  At this juncture, it may be convenient to also mention the applicant’s non-refoulement claim assessed on all applicable grounds[4] except BOR 2 risk. In relation to that assessment, the Director rejected the applicant’s claim by a decision dated 15 December 2014 (“Director’s Earlier Decision”). The applicant’s appeal against the Director’s Earlier Decision was dismissed by the Board in its decision dated 27 July 2015 (“Board’s Earlier Decision”). In the Form 86, the applicant only referred to the Board’s Decision but not the Board’s Earlier Decision.

8.  At the hearing, this court asked the applicant whether he had any further grounds he wished to submit in support of the Leave Application. The applicant stated that he had nothing to say. Since there are in fact two Decisions of the Board, and the Form 86 has not identified the Board’s Earlier Decision, this court therefore reminded the applicant that there were in fact two Decisions of the Board. The applicant was specifically asked whether he wished to include the Board’s Earlier Decision in this Leave Application. Despite having been informed of this fact, the applicant maintained that the only decision he wished to challenge was the Board’s Decision.

9.  In spite of the applicant’s confirmation of his intention to only review the Board’s Decision, I note however that in the Form 86, the applicant has also referred to “BOR 3 or Persecution” that the Board has rejected. In the circumstances, applying the principle of the high standard of fairness, this court will include the Board’s Earlier Decision in its discussion in the Leave Application.

10.  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.[5]

11.  In the Board’s Earlier Decision, although the Board accepted the applicant’s factual narrative, it however found that the assaults by the applicant’s former business partners not serious, and that the threats they made to him were vague. The Board considered that there was no indication that the former business partners would inflict serious harm on the applicant in the event of refoulement. The Board thus found that there was no real risk of harm. These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

12.  In the Board’s Decision (which only dealt with BOR 2 risk), relying on its findings in the Board’s Earlier Decision that there were no risks to the applicant of torture, CIDTP or persecution, the Board equally found that there was no substantial risk that Raja or his associate would cause him harm if he was refouled to India. Thus, the Board rejected the claim in respect of BOR 2 risk as well.

13.  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. The applicant’s written grounds are vague and lack particulars. Neither is the applicant able to provide any further grounds or submissions in support of the Leave Application. 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[6].

Order

14.  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