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

HCAL 330/2024

[2026] HKCFI 4122

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 330 of 2024

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

1.   The Applicant’s Form 86 be amended to name only the Torture Claims Appeal Board as the putative respondent and the Director of Immigration as the putative interested party; and

2.   Leave to apply for judicial review be dismissed.

Observations for the Applicant:

INTRODUCTION

1.  By a Form 86 filed on 16 February 2024 (“the Form 86”), the applicant applied for leave to apply for judicial review of a decision by the Torture Claims Appeal Board (“the Board”) dated 6 February 2024 (“the Board’s Decision”), which affirmed a decision by the Director of Immigration (“the Director”) dated 21 December 2021 in refusing the applicant’s non-refoulement protection claim.  He named the Board and the Director as the proposed respondent and the Board as the interested party.

2.  I amended the Form 86 on my own motion to name only the Board as the putative respondent and the Director as the putative interested party.

3.  The applicant did not request for a hearing and this application is to be dealt with by consideration of the documents only.

BACKGROUND

4.  The applicant is a national of Pakistan.  He seeks non-refoulement protection on the basis that if he is refouled, he would be harmed or killed by the family of his girlfriend who did not approve of his relationship with her.  His personal background, the relevant facts and relevant procedural history have been set out in the Board’s Decision, which can be accessed through a hyperlink[1].  I shall not repeat the same here.

DISCUSSION

5.  In a judicial review, this court does not provide a further avenue of appeal.  Though in non-refoulement case an enhanced standard in scrutinizing the decision of the Board is required given the seriousness of the issue at hand, this court should not usurp the role of the Board, which together with the Director are the primary decision-makers.  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 Board (Nupur Mst v Director of Immigration [2018] HKCA 524, [14(1)]).  There must be a reasonably arguable claim with a realistic prospect of success before leave for judicial review will be granted (Peter Po Fun Chan v Winnie Cheung & Anor (2007) 10 HKCFAR 676).

6.  In the Form 86 and the affirmation filed in support of the application, the applicant has not specified any grounds to apply for leave for the judicial review.  In particular, he did not identify any errors of law, procedural unfairness or irrationality in the Board’s Decision.

7.  Having looked at the Board’s Decision, I find the Board has carefully taken into consideration of the applicant’s case and evidence as set out in his non-refoulement claim form (“NCF”) and interview with the director [28-53], including the applicant’s testimony at the hearing before it [54-80].  The Board also considered the submissions made by the applicant’s counsel as well as the government counsel who acted for the Director [81-84].

8.  In my view, the Board bore in mind the correct principles in respect of each of the four applicable grounds under the USM [14-27], thoroughly analysed each, including the applicant’s credibility [85-88], before coming to the conclusion that the evidence of the applicant is wholly unreliable [86] and what he presented to the Director at the interview as well as what he told the Board at the hearing is not credible and cannot be relied upon.  The Board found him not a witness of truth and his claims about his girlfriend’s family have been fabricated.  The Board was not persuaded that any threats of harm or harm took place [87].  Therefore, the Board found that the applicant’s application for non-refoulment protections fails on all applicable grounds [89-95].

9.  Despite rigorous examination and anxious scrutiny, I could not find any errors of law, procedural unfairness or irrationality in the Board’s Decision.

CONCLUSION

10.  For the above reasons, I am not satisfied that this court should intervene by way of judicial review.  I therefore dismiss the application.

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