ALI SANDA MOHAMED v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1160/2020

[2025] HKCFI 4184

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1160 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;

1.   The Applicant’s Form 86 be amended to name (a) the Board as the putative respondent, (b) the DI as putative interested party and (c) the Board’s Decision as the decision sought to be reviewed; and

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

Observations for the Applicant:

1.  By a Form 86 filed on 11 June 2020 (“Form 86”), the Applicant sought leave for judicial review of a decision dated 20 May 2020 without specifying which administrative body made it.  The Director of Immigration (“DI”) was named as putative respondent.

2.  According to an exhibit to the supporting affirmation, the Applicant’s non-refoulement claim was actually decided by the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”) on 20 May 2020 (“the Board’s Decision”).  A copy of the Board’s Decision can be viewed by the following hyperlink[1].  The Board’s Decision was made pursuant to a petition/appeal from a decision of the Director of Immigration (“DI”) dated 5 October 2018.  In the circumstances, I amended the Form 86 on my own motion as per paragraph 1 of my order above.

3.  The Applicant comes from Niger, an African country. The basis of the Applicant’s non-refoulement claim was that he was in fear of being harmed or killed by his ex-employer, who allegedly had police connection, over a money matter. 

4.  After an oral hearing, the Board came to the finding that the Applicant’s claim was not credible.  Accordingly, he was not found to have any substantial ground to believe that he would face risk of ill-treatment.

5.  In his Form 86 and supporting affirmation, the Applicant did not point to any errors of law, procedural unfairness or irrationality of the Board’s Decision.  It has been reiterated time and again that the primary responsibility for the factual assessment of whether any risk of ill-treatment exists lies with the Board.  In the absence of any errors of law, procedural unfairness or irrationality, the Court would not reopen the Board’s findings or make a determination on the case afresh.  The role of the Court in a judicial review is not to provide a further avenue of appeal (see Re Lakhwinder Singh [2018] HKCA 246).

6.  I have reviewed the Board’s Decision vigorously, but do not find the proposed judicial review reasonably arguable.  The leave application is thus 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