AMJAD MUHAMMAD v. NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 912/2020

[2025] HKCFI 3151

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 912 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 documents and oral submissions by the Applicant in open court.

1.  Form 86 be amended on the court’s own motion as follows:-

a.  the Non-refoulement Claims Petition Office be named as the 1^st Putative Respondent; and

b.  the Director of Immigration be named as the 2^nd Putative Respondent.

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

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 15 May 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against (i) the decision of the Non‑refoulement Claims Petition Office (the “Board”) dated 8 May 2020 (the “Board’s Decision”); and (ii) a decision of the Director of Immigration (the “Director”) dated 31 August 2018 (the “DOI Decision”). Both the Board and the Director rejected the Applicant’s non-refoulement claim on all applicable grounds except torture risk as the Applicant’s torture claim was already finally rejected in 2012.

2.  In the Form 86, the Applicant has challenged both the DOI Decision and the Board’s Decision and as mentioned above the torture claim is irrelevant for present purposes. Hence, I make an order to amend the Form 86 accordingly on the court’s own motion to ensure that the proposed respondents are properly named.

3.  The oral hearing of the Leave Application (“Hearing”) took place before me on 15 July 2025 and the Applicant attended in person.

Background

4.  The Applicant’s background, the basis and history 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 herein. The hyperlink to the Board’s Decision is included below[1] for reference. In short, the basis of the Applicant’s claim is that he is involved in a business dispute with certain individuals (known as Kala and Baiya) (the “Adversaries”) and he will be harmed or killed by and their associates if he is returned to Pakistan.

Discussion

5.  At the outset, I should point out that the Applicant’s challenge against the DOI Decision is misconceived. The appeal to the Board was conducted by way of rehearing and the Board’s Decision has effectively overtaken the DOI Decision, see: Re Moshsin Ali [2018] HKCA 549 at §45. Hence, the focus should be on the Board’s Decision.

6.  The applicable legal principles relating to this type of applications are well established. The judicial review is not an avenue of appeal. Though in non-refoulement cases, the Court will adopt a high standard of fairness to review the decision of the Board with anxious scrutiny due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence such as country of origin information (COI) materials, risk of harm, state protection and viability of internal relocation are primarily within the remit of the Board. The Court will not intervene by way of judicial review unless the Applicant is able to show a reasonably arguable case with realistic prospects of success that 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).

7.  In the supporting affirmation for the Form 86, the Applicant advanced the following grounds on which relief is sought:-

(1)  The DOI Decision and the Board’s Decision were Wednesbury unreasonable.

(2)  The Director and the Board failed to give him sufficient time and chance to adduce relevant evidence.

(3)  The Director has failed to properly consider state acquiescence in the Applicant’s case and that the Applicant was tortured at the behest of law enforcement agencies and “higher ups” in the political circles.

(4)  The Director and/or the Board has erred in failing to consider relevant COI materials on lack of state protection.

8.  On complaint (1), the Board’s Decision was comprehensive with adequate reasons provided. In particular, the Board was plainly correct in finding that there was no evidence of any real risk of serious harm:-

(1)  The Applicant’s account was found to be incredible because of his inconsistent evidence on two crucial events, namely (i) the fighting accident in July 2011 where the Adversaries were injured; (ii) an incident after the fighting incident when the Adversaries allegedly went to look for the Applicant. The substance of the Applicant’s factual account on the alleged threat of the Adversaries was rejected by the Board (§§24-29, 41 of the Board’s Decision).

(2)  Any threat was unlikely to materialize given that even on the Applicant’s evidence, he only received verbal threats. There was no evidence that he was subject to any actual bodily harm (§43 of the Board’s Decision).

9.  Hence, the Board’s Decision satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational. Complaints (1) has no merit.

10.  On complaint (2), as I have clarified with the Applicant at the Hearing, the complaint is in fact about the alleged failure of the Board to consider documents that the Applicant had submitted to the Board. They are said to be certain court documents in relation to the fight which took place in July 2011 (“Fighting Incident”). However, the Applicant has failed to make good the point by exhibiting these documents to the Applicant’s affirmation accompanying the Form 86 so they are not before the court. No elaboration has been put forward as to why these documents were material.

11.  In any event, I do not consider this complaint to be reasonably arguable. From its analysis of the Fighting Incident (§§24-32, 41-43 of the Board’s Decision), there is no indication that the Board has failed to consider all relevant evidence submitted by the Applicant in arriving at its decision.

12.  On complaints (3) to (4):-

(1)  Given the rejection of the Applicant’s factual account, the Applicant’s argument on state acquiescence is misplaced.

(2)  In my view, the Board was entitled to find that there was no evidence to prove any participation of any threat by agents of the state against the Applicant (§§55-56 of the Board’s Decision).

(3)  The Board was entitled to find that state protection would be available in any event. In reaching its conslusion, the Board had already taken into account COI on lack of competence and corruption in the police force of Pakistan but nevertheless, having considered the COI evidence in its totality, the Board was entitled to take the view that actions have been taken by the Pakistani government to address these deficiencies (§44-48 of the Board’s Decision). Hence, there is no basis for the Applicant to allege that the Pakistani state had acquiesced the alleged threat against the Applicant (whether in the active or passive sense).

13.  In short, 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.

14.  For the sake of brevity, leave application of this sort is intended to be a filtering process and elaborate reasons are not necessary (see Re Zunariyah [2018] HKCA 14, at §23).

Conclusion

15.  In the premises, I make an order that the Form 86 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