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

HCAL 83/2021

[2025] HKCFI 5444

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 83 of 2021

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

Following;

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; (2) the Director of Immigration be named as the Putative Interested Party; and (3) The date of the decision in respect of which relief is sought be amended to 21 January 2021.

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

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 25 January 2021 (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 21 January 2021 (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, and the Board as the proposed interested party.  As it is trite that the Board should be the proposed respondent whereas the Director should be the proposed interested party in an application of this sort, I make an order to amend the Form on the court’s own motion.

3.  The Applicant requested an oral hearing for the Leave Application.  The hearing took place on 13 October 2025 and the Applicant attended in person.  At the hearing, I pointed out to the Applicant that the date of the Board’s Decision stated on the Form (15 January 2021) seemed incorrect, and the correct date should be 21 January 2021.  The Applicant confirmed that it was a typo. Accordingly, I made an order to correct the date of the Board’s Decision stated on the Form.  Apart from the aforesaid, the Applicant indicated that he had nothing to say in respect of the Leave Application. 

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[1] is included below 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 or procedural unfairness or irrationality in the decision of the Board.  (See Nupur Mst v Director of Immigration [2018] HKCA 524, at §14)

6.  The Applicant did not provide any grounds in support of the Leave Application in the Form.  In the supporting Affirmation, the Applicant simply stated that he does not agree with the Board’s Decision and that he cannot go back to his country because of danger.

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.  The Board was entitled, and indeed correct, to reject the claim based on the evidence (§§60-99 of the Board’s Decision), in particular because of the serious contradiction in the evidence (§§66-69 of the Board’s Decision) and the hearsay nature of the evidence (§§70-71 of the Board’s Decision).  The Board’s Decision satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational.  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.

8.  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

9.  In the premises, I make an order that the Form be amended as described above and the Leave Application 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