FAISAL MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 1337/2020

[2025] HKCFI 5435

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1337 of 2020

 Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

1.  The Form 86 is amended of the Court’s own motion, naming only the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office as the Putative 1st Respondent, and naming only the Director of Immigration as the Putative Interested Party; and

2.  Application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  The Applicant is a national of Pakistan.  By a Form 86 filed on 29 June 2020 (“Form 86”), and a supporting affirmation also filed on 29 June 2020 (“the Affirmation”), he sought leave to apply for judicial review of a decision of the Torture Claims Appeal Board (“TCAB”)/Non-Refoulement Claims Petition Office (“NRCPO”) dated 9 April 2020 (“TCAB Decision”)[1].  I will use the abbreviations and definitions from the TCAB Decision unless otherwise specified herein.

2.  The Applicant sought an oral hearing of his application, but did not appear at the scheduled hearing on 6 August 2025.  I have hence dealt with his application on the papers.

3.  In the Affirmation the Applicant also seemed to indicate that he sought leave in relation to a decision of the Director of Immigration (“Director”) dated 10 February 2017 (“Director’s Decision”). The Form 86 did not indicate such intention, although it named the Director as an intended respondent in relation thereto. However, any application for leave to apply for judicial review of the Director’s Decision is not reasonably arguable, since once he had pursued his appeal to the TCAB/NRCPO, the Director’s Decision was (absent exceptional circumstances, of which none have been suggested to me) no longer susceptible to judicial review (Moshsin Ali [2018] HKCA 549; Yeni Setyawati v Torture Claims Appeal Board [2019] HKCA 1310; Sherpunja Thapa Kul Prasad [2022] HKCFI 2434 §18). Such an application is hence to be dismissed.

4.  I have therefore amended the Form 86 of my own motion to properly identify the putative 1^st respondent and the putative interested party.

Background

5.  This is set out in the TCAB Decision.  I will not repeat the contents thereof, but in summary:

a.  The Applicant claimed non-refoulement relief on the basis that if he were refouled to Pakistan, he would be harmed by his paternal uncle.  He had the benefit of being represented by the Duty Lawyer Service (“DLS”) via whom he submitted his NCF;

b.  The claim was assessed on the grounds of Torture Risk[2], BOR 3 Risk[3], BOR 2 Risk[4] and Persecution Risk[5] and was rejected by the Director in the Director’s Decision dated 10 February 2017;

c.  The Applicant petitioned/appealed to the TCAB/NRCPO, which held a hearing in relation to the Applicant’s non-refoulement claim on 7 January 2020, and at which he was represented by a duty lawyer from the DLS; and

d.  The TCAB/NRCPO issued the TCAB Decision on 9 April 2020, in which it rejected the Applicant’s claims that he faced any of the relevant types of risk if refouled to Pakistan, dismissed the appeal/petition, and confirmed the Director’s Decision.

Legal Principles

6.  An applicant, even one acting in person, is required to identify the grounds of judicial review clearly and succinctly in the Form 86, and to fully and frankly disclose all material facts and potential legal answers (Ho Loy & Another v Director of Environmental Protection, unrep.  HCAL 21/2015, 22 December 2016, Chow J. (as he was then) at §142; Leung Kwok Hung, unrep., HCAL 83/2012, 28 September 2013, Lam J. (as he was then) at §35; Begum Khadija [2018] HKCA 571; Khan Kamran [2020] HKCA 380).

7.  It is trite that the role of the Court in a judicial review is not to provide a further avenue of appeal, and that the Court should not usurp the role of the TCAB/NRCPO which is (and together with the Director are) the primary decision‑makers.  The assessment of evidence, COI materials, and credibility, risk of harm, state protection and viability of internal relocation are primarily within the province of the TCAB/NRCPO and the Director, which are entitled to make evaluations based on the evidence available and to decide the weight to be given to them.  While the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, 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 TCAB/NRCPO.  (Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; Nupur Mst v Director of Immigration [2018] HKCA 524; Re Kartini [2019] HKCA 1022; Re Rupinder Singh [2021] HKCA 886).

8.  In order for me to give leave for judicial review, I have to be satisfied that there is an intended ground of review which is reasonably arguable, which is one that enjoys a realistic prospect of success (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676).  As a leave application of this sort is meant to be a filtering process, I am not expected to give elaborate reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23).

Discussion

9.  As the Applicant has not identified or set out any grounds of judicial review in the Form 86 or Affirmation, there is no allegation of any procedural unfairness in relation to, of any error of law in, and/or of any irrationality/failure to meet the enhanced Wednesbury test in, the TCAB Decision.

10.  However, given the seriousness of the issues at hand, I have considered the TCAB Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard and bearing in mind the need for a high standard of fairness.

11.  The TCAB/NRCPO set out the Applicant’s procedural and immigration history and the grounds relied on (Paragraphs 1 to 7), a summary of its conclusions as reached for reasons below (Paragraph 8), and explained the principles and approach taken as to the burden of proof, standard of proof as to the primary facts of the case, and as to assessment of the evidence (Paragraphs 9 to 17).  It then outlined the Applicant’s case including his immigration history and current situation (Paragraph 18 to 27).

12.  The TCAB/NRCPO then explained that, and gave reasons as to why, having looked at the evidence as a whole, it found the Applicant’s account not credible, and did not accept that he was ever threatened or assaulted or that he came to Hong Kong due to his fear for his life and safety. It found that he had failed to prove the primary facts of his case and that it was not prepared to give credence to any material facts in his evidence, hence there was no factual basis to support any of the applicable grounds (Paragraphs 28 to 48).

13.  The decision-maker then went on to consider that even if the Applicant’s factual account were accepted, on the evidence he had not proved a real risk that he would be subjected, on refoulement, to harm which would amount to torture, CIDTP, risk to life, or persecution (Paragraphs 49 to 59).  State protection was also available to the Applicant having regard to relevant COI, the type of risk posed, and the other facts of the case (Paragraphs 60 to 87).

14.  Given the aforesaid matters, it rejected the claims as made in relation to Torture Risk, BOR 2 Risk, or BOR 3 Risk (Paragraphs 88 to 107), and rejected Persecution Risk given the lack of factual basis and the lack of a Convention reason (Paragraphs 108 to 114).  Internal relocation was also a viable option.  The TCAB/NRCPO then referred in conclusion to its summary in Paragraph 8, confirmed the Director’s Decision and dismissed the appeal/petition (Paragraphs 115 to 122).

15.  I do not, from my examination and scrutiny, see that the Applicant has any reasonably and that it hat there was procedural unfairness (bearing in mind the need for a high standard of fairness), an error of law, and/or irrationality/failure to meet the enhanced Wednesbury test that is sufficient to vitiate the TCAB Decision and justify the grant of leave.  This is especially so given that the assessment, reasoning, and findings regarding the evidence and credibility, risk of harm, state protection, and internal relocation are matters primarily within the province of the decision-maker.  Nor is there any public law basis to vitiate the decision‑maker’s conclusions regarding Torture Risk, Persecution Risk, BOR 3 Risk, and BOR 2 Risk.

16.  There is hence no basis for the court to intervene by way of judicial review, and I am not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success.

Conclusion

17.  In the circumstances, I have ordered that the application for leave to apply for judicial review be dismissed and made the other orders above.

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