NAVEED MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2239/2020

[2025] HKCFI 5889

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2239 of 2020

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

Following:

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

1.  Leave is granted to the applicant to amend the Form 86 by amending the Board’s Decision dated 24 September 2020 as the subject decision in respect of which relief is sought.

2.  The applicant’s application for leave to apply for judicial review against the Board’s Decision dated 24 September 2020 be dismissed.

Observations for the Applicant:

Introduction

1.  ; By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 9 November 2020, the applicant applied for leave to apply for judicial review (“Leave Application”). 

2.  In the Form 86, the subject decision under challenge is stated as “Lam Hoi 28 April 2017”, which is the same date of the decision of the Director of Immigration (“Director”), dismissing the applicant’s non-refoulement claim on the ground of Article 2 of the Hong Kong Bills of Rights (“BOR 2”).  By the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 24 September 2020 (“Board’s Decision”), the Board dismissed the applicant’s appeal against the Director’s Decision.

Amendment

3.  At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 20 November 2025.  The applicant attended the hearing in person.  In view of the confusing arose from the Form 86, the court went through the chronology of the case with the applicant, telling him that there were two decisions of the Director (including the Director’s Decision) and two decisions of the Board (Including the Board’s Decision).  The court even briefly adjourned the hearing to give him more time to understand the court’s explanation.  When the hearing resumed, the applicant stated that he had made a mistake.  He in fact wished to challenge the Board’s Decision.  He applied to amend the Form 86.  I would grant the applicant leave to amend Form 86 by amending the subject decision as the Board’s Decision.  I will also make further consequential amendments by amending in the Form 86 the Board as the proposed respondent and the Director as the interested party.  Hence, the Form 86 as amended is only in respect of the Board’s Decision dealing with BOR 2 risk.  The Board’s earlier decision dated 9 March 2017 dealing with the other 3 risks is not the subject matter of the Leave Application.

4.  The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL002239_2020_files/the_Board's_Decision.pdf

5.  The basis of the applicant’s claim was that, if refouled to Pakistan, he would be harmed or killed by the Pakistan People’s Party.  The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them.  Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

Discussion

6.  The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[1]  It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

7.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[2], and further to make full and frank disclosure of all material facts to be verified by an affidavit.   

8.  In his Form 86, the applicant did not raise any grounds for judicial review.  In his supporting affirmation, the applicant exhibited a 5-page skeleton submission and a 7-page grounds of review. The skeleton submission is convoluted and confusing.  As for the applicant’s proposed grounds of review, they seem to have been copied and pasted from different sources as they were illogically arranged and duplicitous.  They contain broad allegations that the Board had failed to maintain high standard of fairness; that there were procedural impropriety, irrationality and unfairness.

9.  At the hearing, after having dealt with his application to amend, this court asked the applicant whether he had any grounds he wished to submit in support of the Leave Application as amended.  The applicant said that he had nothing to add, and wanted to stay in Hong Kong longer.

10.  As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality.[3]  In the present case, the Board found that the evidence given by the applicant was conflicting and not believable.  The Board found that he was not a credible witness.  As for the risk of future harm, the Board found that there was not a real risk of harm from the PPP.  The Board further found that internal relocation was reasonably viable.  These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

11.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness.  The applicant’s proposed grounds of review are not only vague and do not condescend to particulars, they bear no relevance to the facts of the case.  For example in his 1^st Ground, he complained that the Board had failed to maintain the high standard of fairness by not holding an oral hearing to allow him to put forward his case.  This is plainly factually incorrect.  The Board in fact held a hearing, and asked him questions.  In the circumstances, having examined the applicant’s grounds in a round, I am not satisfied that the applicant has shown any errors of law or procedural unfairness or irrationality in the Board’s Decision.  The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[4].

Orders

12.  Leave is granted to the applicant to amend the Form 86 by amending the Board’s Decision dated 24 September 2020 as the subject decision in respect of which relief is sought.

13.  The applicant’s application for leave to apply for judicial review against the Board’s Decision dated 24 September 2020 be dismissed.

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

[1] Re Zunartyah [2018] HKCA 14 at [23].

[2] Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015, 22 December 2016 at [142].

[3]  Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

[4]  Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676