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

HCAL 2494/2020

[2026] HKCFI 655

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2494 of 2020

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 the documents and oral submissions by the Applicant in open court;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 24 December 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review against the decision by the Torture Claims Appeal Board (the “TCAB”) apparently dated 19 September 2020.

2.  There was in fact no such TCAB decision of that date. Rather there was one dated 9 October 2020 (the “2^nd TCAB Decision”), which affirmed the decision of the Director of Immigration (the “DOI”) dated 8 May 2017.

3.  The 2^nd TCAB Decision only concerned the Applicant’s claim under Article 2 of the Hong Kong Bill of Rights Ordinance (“BOR2”). There was an earlier decision from the TCAB dated 17 March 2017 (the “1^st TCAB Decision”) which affirmed the DOI’s decision dated 12 December 2014 regarding the Applicant’s claim under the other 3 applicable grounds. The procedural chronology is set out in [1-6] of the 2^nd TCAB Decision.

4.  I regard the Form 86 to be a challenge against the 2^nd TCAB Decision only and not against the 1^st TCAB Decision. This is because the exhibits to the Applicant’s supporting affirmation only contained documents relating to and flowing from the DOI’s decision dated 8 May 2017 (which eventually led to the 2^nd TCAB Decision). It shows that the focus of the present application is only directed at subject matters set out in the 2^nd TCAB Decision, i.e. exclusively relating to the Applicant’s claim under BOR2 (and no more).  

5.  The Applicant requested for a hearing of this application and he attended the same. When asked if he had anything to add he confirmed that he had not.

Background

6.  The Applicant is a national of Pakistan. He seeks non-refoulement protection on the basis that he would be harmed or killed if he is to go back because he had a land dispute with someone who was affiliated with the mafia group. The Applicant claims that he had been kidnapped at one stage, and the local police would not entertain complaints because his enemy was powerful in the city. The Applicant’s personal background and the relevant facts have been fully set out in the 2^nd TCAB Decision, which can be viewed through a hyperlink[1]. I shall therefore not repeat them.

Discussion

7.  The leave application operates as a filtering process and there is no requirement or expectation to give elaborate reasons for my decision: Re Zunariyah [2018] HKCA 14 at [23]. It is sufficient to state my observations after considering the 2^nd TCAB Decision and the materials adduced by the Applicant.

8.  I remind myself that in a judicial review, this court does not provide a further avenue of appeal. Though in non-refoulement cases an enhanced standard in scrutinizing the decision of the TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI are the primary decision-makers. A finding of fact is exclusively within the realm of the TCAB, and this 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: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)]. There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

9.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (unreported, HCAL 21/2015, 22 December 2016) at [142], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

10.  The Applicant did not point to any error of law, procedural unfairness or irrationality of the 2^nd TCAB Decision in the Form 86 nor in his supporting affirmation.

11.  As can be seen from the 2^nd TCAB Decision, the TCAB took into account the Applicant’s case [11-19, 25-33] and found that on the basis of the same, applying also the correct legal principles in respect of BOR2 claims [9 and attachment to the 2^nd TCAB Decision] and properly considering Country of Origin information [8, 20-24, 34], the Applicant’s allegations were insufficient to make out any of the applicable grounds [38-42]. The Applicant presented no new or additional material when compared to the deliberation of the 1^st TCAB Decision, and on that basis the TCAB was entitled to rely on its earlier findings in the 1^st TCAB Decision [18-19]. The TCAB further found (on both occasions) the Applicant’s evidence to be incredible [19, 36], so there was no factual or evidential basis to support the Applicant’s claims [37, 39-41]. These were conclusions that the TCAB was fully entitled to reach.

12.  All in all, I do not see any errors of law, procedural unfairness or irrationality in the 2^nd TCAB Decision, despite rigorous examination and anxious scrutiny. The Applicant’s intended challenge to the 2^nd TCAB Decision is not reasonably arguable, and accordingly the application for leave to apply for judicial review is 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