WAKIL MOHAMMAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE [Decision on Leave Application]

bjbj HCAL 1485/2025 [2026] HKCFI 2558 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1485 of 2025 BETWEEN Wakil Mohammad Applicant Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent Director of Immigration Putative Interested Party Application for Leave to Apply for Judicial Review NOTIFICATION of the Judge s decision (Ord. 53 r. 3) Following: ( consideration of documents only; or consideration of documents and Applicant being absent in open court; Order by Deputy High Court Judge K.W. Lung: Leave to apply for Judicial Review be refused. Observations for the Applicant: THE APPLICATION The applicant applies for leave to apply for judicial review of the Decision dated 29 May 2025 of the Torture Claims Appeal Board ( the Board s Decision ), dismissing the appeal against the Director s Decision as described below. The applicant did not ask for a hearing. Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party. The applicant The applicant is a national of India. He is an illegal immigrant. He lodged a non-refoulement claim with the Director of Immigration ( the Director ) on the basis that, if refouled, he will be harmed or killed by his creditor because he was unable to repay his loan. Details of his claim are set out in the Board s Decision. See hyperlink HYPERLINK "https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001485_2025_files/the_Board's_Decision.pdf" https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001485_2025_files/the_Board's_Decision.pdf . The Director s Decision The Director considered the applicant s claim in relation to the following risks: risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, ( Ordinance Torture risk ); risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 ( HKBOR BOR 2 risk ); risk of torture or cruel, inhuman or degrading treatment or punishment ( CIDTP ) under Article 3 of Section 8 of the HKBOR ( BOR 3 risk ); and risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol ( Refugee Convention Persecution risk ). By way of Notice of Decision dated 20 January 2025 ( Director Decision ), the Director dismissed the applicant s claim on all applicable risks because it was unsubstantiated. The Board s Decision The applicant appealed the Director s Decision to the Board. On 26 March 2025, the Board conducted an oral hearing for his appeal. He had given oral evidence and answered the Board s questions. Having considered the evidence, the Board made the findings below. There was no evidence that he owed any money from any creditor. [61] The applicant s evidence was disbelieved. His claim must fail. [70] Even if his story were accepted, he is still not eligible for non-refoulement protection because the creditor did not have the intention to harm or kill him; he was not physically injured; state protection will be available to him and internal relocation is viable. For the reasons above, the Board dismissed his appeal and affirmed the Director s Decision. Application for leave to apply for judicial review of the Board s Decision The applicant has filed Form 86 dated 27 June 2025 for leave to apply for judicial review of the Board s Decision. The applicant did not raise any reason to challenge the Board s Decision. DISCUSSION The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board s Decision on the applicant s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, 40 and Nupur Mst v Director of Immigration [2018] HKCA 524, 14 (1). The Court will bear in mind that the Board s Decision should be examined with rigorous examination and anxious scrutiny. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held: 13. (1) Assessment of evidence and COI materials and 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 or procedural unfairness or irrationality in the decision of the Board. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board s Decision. DISPOSITION I refuse to grant leave to the applicant to apply for judicial review of the Board s Decision. Accordingly, I dismiss his application. Dated the 15th day of May 2026 (Klein Tse) for Registrar, High Court 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: 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)). Sent to the Applicant on 15/5/2026 Wakil Mohammad Applicant s ref. no: Nil. 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 15/5/2026 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent s ref. no.: USM 25578 Director of Immigration Putative Interested Party s ref. no.: INCL-0002852-24 (2) (CZ) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2) Form CALL-1 PAGE \* MERGEFORMAT hN/` hN/` hN/` gdD1 gdD1 gdD1 gdD1 gdD1 yt 7: gdt^ yt 7: yt 7: yt 7: yt 7: yt 7: yt 7: gdD1 gdD1 gdD1 gdD1 yt 7: }xskgbggg]UNJNUgbJ gdD1 gdD1 gdD1 gdD1 gdD1 gdD1 gdD1 gdD1 gdD1 h8\[ h8\[ h8\[ gdD1 gdD1 gdD1 gdD1 gdD1 tcRA3A3A hjOo hjOo gdD1 gdD1 gdD1 m\m\m\ gdD1 gdD1 rkg`YQM gdD1 gdD1 yt 7: yt 7: yt 7: yt 7: yt 7: yt 7: yt 7: yt 7: M #v phFx ph`^\ [Content_Types].xml _rels/.rels theme/theme/themeManager.xml K Y, sQ}# theme/theme/theme1.xml z)P -zh 83;3;{ ]XS1IH 0H!A Ssd- ]A3U mH#[ A\;> K}*7c ^I77 >g^* y')f ZI$G ,{uk< WV j k3 zjv3,j X1? 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Lung Times New Roman Leave to apply for Judicial Review be refused Times New Roman Observations for the Applicant: THE APPLICATION "Arial The applicant applies for leave to apply for judicial review of the Decision dated 29 May 2025 of the Torture Claims Appeal Board ( the Board s Decision dismissing the appeal against the Director s Decision as described below. The applicant did not ask for a hearing Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party. 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