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HCAL 1150/2020
[2025] HKCFI 3850
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1150 of 2020
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BETWEEN
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Ishaq Muhammad |
Applicant |
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and |
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Torture Claims Appeal Board/ |
Putative |
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Non-refoulement Claims Petition Office |
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
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) Philips Wong:
1. Form 86 be amended as follows:- (1) the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office be named as the only Putative Respondent; and (2) the Director of Immigration be named as the Putative Interested Party.
2. The application for leave to apply for judicial review be dismissed.
Observations for the Applicant:
Introduction
1. By Form 86 filed on 10 June 2020 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against the decision of the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office (the “Board”) dated 2 June 2020 (the “Board’s Decision”).
2. In the Form, the Applicant named both the Board and the Director of Immigration (the “Director”) as the proposed respondents. The Applicant did not name any proposed interested party. As it is trite that the Board should be the proposed respondent whereas the Director should be the proposed interested party, I make an order to amend the Form on the court’s own motion.
3. The Applicant requested an oral hearing for the application. The hearing took place on 21 July 2025 and the Applicant attended in person. At the hearing, the Applicant said his problem has arisen again in Pakistan. He further told the court that he got married in Hong Kong and has a child here. Both his wife and his child is sick and he wants to stay in Hong Kong. After the hearing, the Applicant asked the interpreter to request the Court to inform him of the decision by phone.
Background
4. The Applicant’s background, the basis of his claim and the arguments he advanced had been set out in detail 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.
Discussion
5. The applicable legal principles relating to application of this sort are well established. The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. Though in non-refoulement cases, the Court will adopt an enhanced standard in scrutinizing the decision of the Board 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)
6. In the Form, the Applicant did not provide any grounds in support of the Leave Application. In the supporting Affirmation, the Applicant simply stated that he does not agree with the Board’s Decision and that he has problem in his country.
7. I have considered the Board’s Decision in detail. I do not find any error of law, procedural unfairness or irrationality. Neither has the Applicant been able to demonstrate any of the same. There is nothing to indicate that the Board had failed to take into account any relevant matters. The Board’s Decision was comprehensive with adequate reasons provided (§§82-101 of the Board’s Decision). In particular, the Board had thoroughly considered the Applicant’s claims and his evidence, and was entitled to find that the Applicant’s evidence as to the nature of the land dispute was inconsistent (§§82-84 of the Board’s Decision). The Board had also explained why it considered the Applicant’s evidence unreliable (§§85-87 of the Board’s Decision). The Board’s Decision satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational.
8. I also do not consider what the Applicant said at the hearing on 21 July 2025 regarding his family situation to be relevant to the Leave Application. There is also no application to adduce further evidence regarding any change of circumstances in respect of his alleged problem in Pakistan.
9. In the premises, 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.
10. Leave application of this sort is meant to be a filtering process and I am not expected to give elaborated reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23). Suffice for me to state that in reaching the decision, I have considered all the relevant documents before me.
Conclusion
11. In the light of the reasons provided above, I make an order that the Form be amended as described above and the Leave Application be dismissed. Lastly, the Applicant cannot dictate how he should be informed of the court decision. The Applicant will be informed of this decision in the usual way.
Dated the 28th day of August 2025
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(Allen LEE)
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 28/08/2025
Ishaq Muhammad
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 28/08/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 12015/18/6/194/P2331
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1426/18 (formerly as RBCZ 2002620/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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