CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 600 of 2021
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BETWEEN
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Syed Imtaz Uddin Ahmed |
Applicant |
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Putative |
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Non-refoulement Claims Petition Office |
1st Respondent |
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Director of Immigration |
Putative |
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2nd Respondent |
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) Val Chow:
1. Form 86 be amended on the court’s own motion as follows:-
a. the Non-Refoulement Claims Petition Office be named as the Putative 1st Respondent and not the Putative Interested Party; and
b. the Director of Immigration be named as the Putative 2nd Respondent.
2. The application for leave to apply for judicial review be dismissed.
Observations for the Applicant:
Introduction
1. By Form 86 filed on 30 April 2021 (the “Form 86”), the Applicant sought leave to apply for judicial review (the “Leave Application”) against (i) the decision of the Director of Immigration (the “Director”) dated 31 May 2018 (the “DOI Decision”); and (ii) the decision of the Non‑refoulement Claims Petition Office (the “Board”) dated 25 March 2021 which affirmed the DOI Decision (the “Board’s Decision”).
2. As the Applicant has wrongly named the Board as an interested party. I make an order to amend the Form 86 accordingly on the court’s own motion.
3. An oral hearing was requested by the Applicant. It took place before me on 23 December 2025 (the “Hearing”) and the Applicant attended in person.
Background
4. The Applicant’s background, the basis and history 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. The Applicant is from India. In essence, the basis of the Applicant’s claim is that he will be killed by members of a gang (the “Gang”) if he returns to his home country because he witnessed two murders involving members of the Gang that took place in late 2000.
Discussion
5. This type of leave application is intended to be a filtering process and elaborate reasons are not necessary, see Re Zunariyah [2018] HKCA 14, at §23. Hence, I shall set out the brief reasons for my decision below.
6. The applicable legal principles relating to this type of applications are well established. The judicial review is not a further avenue of appeal. Though in non-refoulement cases, the Court will adopt a high standard of fairness to review the decision of the Board with anxious scrutiny 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. To begin with, the challenge against the DOI Decision is unfounded, as it is trite that the DOI Decision is effectively superseded by the Board’s Decision because the proceedings before the Board was conducted by way of rehearing. Hence, the only challenge lies with the Board’s Decision, see: Re Moshsin Ali [2018] HKCA 549 at §45.
8. Further, the Applicant has failed to inform of the court of his grounds of review. The court has repeatedly emphasised that, an applicant, even if unrepresented, is required to properly identify the grounds of judicial review in the Form 86, and to fully and frankly disclose all material facts and potential legal answers, see: Ho Loy & Another v Director of Environmental Protection (HCAL 21/2015, 22 December 2016) per Chow J. (as he was then) at §142.
9. Yet, in the Form 86 and affirmation filed in support, the Applicant only indicated his intention to review the Board’s Decision. He has not submitted a single ground in support of the Leave Application.
10. In any event, notwithstanding the Applicant’s failure to provide any grounds of review, I have considered the Board’s Decision. I do not find any error of law, procedural unfairness or irrationality. There is nothing to indicate that the Board had failed to take into account any relevant matters or that it had taken into account irrelevant matters.
11. The Board’s Decision was comprehensive with adequate reasons provided. In particular, the Board was plainly correct in finding that there is no evidence of any real risk of serious harm, given that (amongst others):-
(1) There was no evidence which supported the Applicant’s claim of the occurrence of the murders (§77). The Applicant’s behavior of having left India on 22 January 2001 and then returning to his home city of Kolkata merely 5 days later was highly inconsistent with the conduct of a person who genuinely feared for his life (§90).
(2) In any event, there was no evidence that any murder prosecution would be reopened after some 20 years since the alleged killing (§79). There was no reason to believe that anyone from the Gang would have any interest to kill the Applicant as members of the Gang had opportunities to do so when the Applicant was still in India (§80).
12. At the Hearing, the Applicant claimed that it would be dangerous for him to return to India. As further illustration of his claim of danger, he also claimed that two of his friends, “Farid” and “Laxminarayan” (who allegedly helped the Applicant to escape India) were killed in 2020. In the circumstances, I am not satisfied that this new claim is credible:-
(1) No affidavit evidence was provided on this new allegation. No particulars or supporting evidence were put forward by the Applicant.
(2) When asked about why he did not make this claim earlier, the Applicant merely said that it would be dangerous for him to disclose the information. No particulars were provided as to why and how it would be dangerous for the Applicant to disclose this information to the court.
13. Accordingly, 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.
Conclusion
14. In the premises, I make an order that the Form 86 be amended as described above and the Leave Application be dismissed.
Dated the 17th day of March 2026
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( Annson Cheung )
for Registrar, High Court
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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 17/3/2026
Syed Imtaz Uddin Ahmed
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 17/3/2026
Non-refoulement Claims Petition Office
Putative 1st Respondent’s ref. no.:
USM 12000/18/6/179/IN2396
Director of Immigration
Putative 2nd Respondent’s ref. no.:
QA T/C 1078/18
(formerly RBCZ/2000520/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1