FAEEM AHMAD v. TORTURE CLAIMS APPEAL BOARD

HCAL 2151/2020

[2025] HKCFI 5850

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2151 OF 2020

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

	consideration of the documents only; or
	consideration of the documents and oral submissions by the applicant in open court;

1.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, “Director of Immigration” be added as the putative interested party, and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 27 September 2018”.

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

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated and filed on 28 October 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of two decisions, namely:-

(1)  “The Decision of the Director of Immigration dated 22^nd February 2017”; and

(2)  “The Decision of the Adjudicator dated 27^th September 2018”.

2.  The Torture Claims Appeal Board (“the Board”) made a decision dated 27 September 2018 (“the Board’s Decision”) in respect of the applicant’s petition against the decision of the Director of Immigration (“the Director”) dated 22 February 2017 (“the Director’s Decision”).

3.  It is clear that the first decision above-mentioned is the Director’s Decision and the second decision is the Board’s Decision.

4.  At the oral hearing before this court on 4 November 2025, this court explained to the applicant that the Director’s Decision was superseded by the Board’s Decision and was no longer susceptible to judicial review (see Re Moshsin Ali [2018] HKCA 549). After the explanation, the applicant confirmed that only the Board’s Decision should be the subject matter of the Leave Application. The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL002151_2020_files/the_Board's_Decision.pdf

5.  The applicant’s petition to the Board was in respect of the Director’s Decision, which rejected his claims for non-refoulement protection based on BOR 2 Risk[1]. His previous Notice of Appeal/Petition (“NOA”) against the Director’s decision dated 11 January 2016, which rejected his non-refoulement claim on the grounds of Torture Risk[2], BOR 3 Risk[3] and Persecution Risk[4], was filed out of time. The Board rejected the applicant’s late filing of the NOA by its decision dated 25 August 2016.

6.  In the Board’s Decision, the Board explicitly mentioned that by applying high standard of fairness, it had reconsidered the applicant’s non-refoulement claim on the grounds of Torture Risk, BOR 3 Risk and Persecution Risk in addition to BOR 2 Risk. The Board found that on the totality of evidence, the claimant had failed to establish, even to the low standard required, that there was a real risk that he would suffer serious harm or ill-treatment of any sort, if he was refouled to India. Thus, the Board concluded that the claimant was not entitled to non-refoulement protection on all four grounds under the Unified Screening Mechanism (“the USM”).

Amendments

7.  In Form 86, the applicant named the Director and “The Adjudicator of the Non-refoulement Claims Petition office appointed to determine the Applicant’s Petition” as the putative respondents but did not name any putative interested party.

8.  As the applicant had confirmed that only the Board’s Decision should be the subject matter of the Leave Application, only the Board should be named as the putative respondent and the Director should be the putative interested party.

9.  The Non-refoulement Claims Petition Office is just an office which provides administrative and secretariat support to the adjudicators of the Board and should not be named as a putative respondent at all.

10.  Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”, to add “Director of Immigration” as the putative interested party and to amend the decision in respect of which relief is sought to “Torture Claims Appeal Board’s decision dated 27 September 2018”.

Late application

11.  By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant had to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made.

12.  However, the applicant filed Form 86 on 28 October 2020, which was more than 25 months after the Board’s Decision (made on 27 September 2018). The applicant was hence late for more than 22 months in making the Leave Application.

13.  This court has to consider whether the time for the applicant to make the Leave Application should be extended taking into account of the criteria laid down in AW v Director of Immigration [2016] 2 HKC 393, which are:

(i)  the length of the delay;

(ii)  the reason for the delay;

(iii)  the merits of the intended application; and

(iv)  any prejudice to the putative respondent and to public administration.

14.  The applicant did not make any application for extension of time and provided no explanation for the delay in making the Leave Application. At the oral hearing before this court on 4 November 2025, the applicant explained that he only came to know that the Board had determined his petition when he reported to the Immigration Department some time in around 2017 or 2018 for recognizance. He did not know that he could apply for judicial review until someone told him so in 2020, and he then engaged a lawyer to help him to make the Leave Application.

15.  The delay of more than 22 months is significant, and the explanation given by the applicant is not satisfactory. Ignorance of the law or the court’s procedures is not generally an excuse for delay. More importantly, there is no merit in the intended judicial review at all as discussed below.

16.  Having considered the above criteria, this court is not prepared to grant any extension of time to the applicant to file the Leave Application, even if an application for extension of time was made. The Leave Application can therefore be dismissed on the ground of being made out of time alone.

17.  However, for the sake of completeness, this court will consider the merits of the Leave Application as discussed below.

The applicant’s case

18.  It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

19.  In sum, the applicant claimed for non-refoulement protection because if refouled to India, he would suffer serious harm, even death, at the hands of the Hindus from Muzzafar Nagar with whom he had a fight while he was staying in his aunt’s house in Muzzafar Nagar. He also claimed that he would be at risk of serious harm, even death, at the hands of Hindus in general because he was a Muslim.

Oral hearing

20.  The applicant requested for an oral hearing of the Leave Application. His case was heard on 4 November 2025.

21.  At the hearing, the applicant confirmed that he would rely on the grounds mentioned in the document with the title “Grounds on which Relief is sought” annexed to his Form 86. However, when this court asked the applicant to elaborate on the grounds, he simply said that the problem was still there but not exactly the same, and the main reason for him to stay here was that his wife and children are here in Hong Kong.

Grounds for judicial review

22.  The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

23.  The applicant stated in his supporting affirmation dated 28 October 2020 that he was not in possession of any documents at the moment but he would submit the supporting documents later.

24.  He also annexed a document with the title “Grounds on which Relief is sought” to his Form 86. The contents of the document were all very general and were in fact used by many applicants in similar applications as their grounds for applying leave to judicially review the Board’s decisions. It is like a template for such applicants and they just used the grounds stated therein without any regard to their own situations. Nevertheless, as the applicant is relying on the above grounds to make the Leave Application, this court will still deal with the grounds as discussed below.

25.  As aforesaid, the applicant also mentioned at the oral hearing before this court that his wife and children are in Hong Kong.

Discussion

26.  First of all, if the applicant intended to submit new evidence to this court for consideration of his non-refoulement claim, it was not permissible. As held in Trinh Thuy Huyen v Torture Claims Appeal Board [2024] HKCA 1090, the Board had no duty to make investigation into any matter without the applicant raising it and it should not be considered by this court at this stage.

27.  Further, as held in Nupur Mst v Director of Immigration [2018] HKCA 524, due to the difference in the role of the court in a judicial review and the role of the primary decision-makers, an applicant cannot rely on materials which have not been produced before the Board or the Director to contend that the latter erred in not taking those into account unless the decision-makers have a positive duty to elicit such materials on their own volition.

28.  Thus, the applicant cannot rely on any matters not presented to the Board for consideration to challenge the Board’s Decision. This court will not allow the applicant to submit further supporting documents later.

29.  As mentioned, all the grounds contained in the document with the title “Grounds on which Relief is sought” are very general. Some of the grounds therein were directed at the Director. As the Director’s Decision was superseded by the Board’s Decision, it is no longer susceptible to judicial review. The applicant also confirmed that only the Board’s Decision is the subject matter of the Leave Application. This court will therefore consider only those grounds directed at the Board in respect of the Board’s Decision.

30.  The 2^nd and 4^th paragraphs of the applicant’s grounds were directed at the Director. Hence, they could not be used to challenge the Board’s Decision and can be simply ignored. Thus, only paragraphs 1, 3, 5 and 6 of the grounds are relevant to the Leave Application.

31.  In paragraph 1 of the grounds, the applicant alleged that the adjudicator of the Board reached the Board’s Decision wrongly and it was not reasonable and fair as required by the Wednesbury test. However, the applicant did not state how or why the Board’s Decision was wrong, unfair and unreasonable. It does not help the applicant to establish any ground by just mentioning the right to life in paragraph 1 either.

32.  In any event, the Board did assess the applicant’s risk of right to life but concluded that he had failed to establish, even to the low standard required, that he would face a real risk of being arbitrarily deprived of his life.

33.  In paragraph 3 of the grounds, the applicant alleged that the adjudicator acted unreasonably and was procedurally unfair by placing too much reliance on country of origin information (“COI”) but failed to take his personal background and experience into account. However, the applicant did not state which aspects of his personal background and experience had not been taken into account by the Board.

34.  In paragraph 5 of the grounds, the applicant alleged that the adjudicator was procedurally improper and/or unfair when assessing whether to accept or not to accept explanations provided by him, and unreasonably required him to respond to questions that he was not in a position to offer any response. This accusation lacks any particulars in support. The applicant did not state which explanations he provided were not accepted by the Board and which questions he was not in a position to offer any response.

35.  There was in fact nothing wrong for the Board to question the applicant extensively to try to understand his claims better and to assess his credibility and his accounts of the events leading to his claim for non-refoulement protection. The questions were necessary for the Board to fulfil its duty of finding of facts in relation to the applicant’s claim. This court finds no fault or unfairness in the Board’s questioning of the applicant at all.

36.  In paragraph 6 of the grounds, the applicant simply alleged that the adjudicator ought to allow the appeal/petition and the Board’s Decision was irrational. There was no particulars or reasons given to say how or why the Board’s Decision was irrational.

37.  As held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”. Thus, none of the aforesaid paragraphs in the grounds could establish any valid ground to challenge the Board’s Decision when they are so vague and general without any requisite particulars related to the applicant’s case.

38.  Lastly, the applicant’s claim that his wife and child are in Hong Kong is not a ground to challenge the Board’s Decision. In any event, family unity rights are not a bar to refoulement of foreign nationals without a right of abode, even when they have a spouse and children who are permanent residents of Hong Kong (see Comilang & Ors v Director of Immigration [2019] HKCFA 10).

39.  It is therefore this court’s finding that the applicant has failed to establish any valid ground for challenging the Board’s Decision.

40.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness, or irrationality (see Nupur Mst v Director of Immigration, supra).

41.  Thus, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any valid ground being advanced by the applicant for the intended judicial review.

42.  In assessing the appeal by the applicant, the Board held an oral hearing on 4 June 2018. The applicant was present and was given the chance to present his case to the Board in person.

43.  The Board found from reliable COI that there were indeed violent clashes, amounting to riots, in Muzzafar Nagar between Hindus and Muslims in August to September 2013 and information relating to the 2013 riots was widely available. However, the Board found that the applicant’s evidence relating to the riots and his involvement in the same were very vague and generalized. The applicant could not even remember the area/district of Muzzafar Nagar where his aunt lived (ie where he stayed) during the riots.

44.  Even on the applicant’s evidence, taken at its height, the fight between the Hindus and the applicant’s aunt’s family, in which the applicant took part, amounted to no more than a minor local fight in which the applicant suffered minor injuries.

45.  Given the lack of credibility of the applicant and on the totality of evidence, the Board was not persuaded that he was giving a truthful or reliable account of events which he claimed occurred in India before he departed the country.

46.  The Board was not persuaded that (1) the applicant was actually in Muzzafar Nagar when the rioting took place in August and September 2013; (2) he was at his aunt’s house in Muzzafar Nagar when there was an attack on his aunt’s family by a large group of Hindus, or at all; (3) he took part in any of the general rioting; and (4) he took part in the fight at his aunt’s house in Muzzafar Nagar as he asserted, or at all.

47.  Moreover, as there had been no major incidents of violence between Hindus and Muslims since the applicant departed India, the Board was not persuaded, even to the low standard required, that there was a real risk the applicant would be arbitrarily killed by the Hindus from Muzzafar Nagar, or Hindus in general, if he was refouled to India.

48.  As aforesaid, although the applicant’s petition only concerned the Director’s Decision which rejected his non-refoulement claim based on BOR 2 Risk, the Board did, by applying high standard of fairness, reconsider the remaining three applicable grounds under the USM.

49.  However, the Board found on the totality of evidence, that the applicant had failed to establish that there was a real risk he would suffer ill-treatment of any sort, or any such treatment which might amount to severe pain or suffering as contemplated by section 37U of the Immigration Ordinance.

50.  Given the findings, the Board did not consider the availability of state protection and the viability of internal relocation for the applicant.

51.  As the applicant’s claims and the matters giving rise to his claims for non-refoulement protection were rejected in their entirety, it is therefore not necessary for the Board to consider the availability of state protection.

52.  As to internal relocation, it is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that he qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997). In other words, internal relocation only arises if the applicant has established a real risk of persecution in his home area (see Gardi v SSHD [2002] 1 WLR 2755).

53.  As it is the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm, it is not necessary for the Board to consider internal relocation.

54.  The assessment of evidence, COI and risk of harm was primarily within the realm of the Board. The Board was entitled to come to its own conclusion. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

55.  Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.

56.  For the sake of completeness, this court noticed that the adjudicator of the Board, Mr Ian Candy, signed the Board’s Decision as “Adjudicator of Non-refoulement Claims Petition Office” instead of “Member of the Torture Claims Appeal Board”. This is not a correct description of his capacity.

57.  Mr Candy was a member of the Board and he was determining the applicant’s petition in his capacity as a member of the Board. The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to him. He was not making the determination on behalf of the Non-refoulement Claims Petition Office, which does not have any power to determine the applicant’s petition at all.

58.  Under the USM, the Chief Executive has delegated his powers under Article 48(13) of the Basic Law to members of the Board to hear and determine petitions in relation to claims made on all applicable grounds other than Torture Risk (see paragraph 3.7 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme). Thus, only the members of the Board have the powers to hear and determine the applicant’s petition.

59.  Nevertheless, the wrong description of his capacity does not nullify the Board’s Decision, as Mr Candy was indeed a member of the Board and did have the power to determine the applicant’s petition. It is just not right to name himself as an adjudicator of the Non-refoulement Claims Petition Office.

60.  As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

61.  For reasons aforesaid, the Leave Application is dismissed for being made out of time and also for lack of merits.

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