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

HCAL 284/2020

[2025] HKCFI 1973

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 284 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.  The Form 86 is amended on the court’s own motion.

2.  The Leave Application be dismissed.

Observations for the Applicant:

Introduction

1.  By prescribed Form 86 filed on 2 March 2020, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 24 February 2020 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 24 September 2019 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on all applicable grounds. The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000284_2020_files/the_Board's_Decision.pdf

2.  In his Form 86, the applicant did not name any interested party. As the Director should have been the property interested party, the Form 86 will be accordingly amended.

3.  The basis of the applicant’s claim is that he would be harmed or killed by his paternal uncle and his uncle’s associates who threatened to kill the applicant unless he transfers his land to his uncle. 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.

4.  As the applicant has requested a hearing of the Leave Application, this court held a hearing on 30 April 2025. The applicant attended the hearing in person. After having heard from him, this court informed him that the decision would be reserved, and be sent to him updated address.

Discussion

5.  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.

6.  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.

7.  In his affirmation in support of his Form 86, the applicant raised the following grounds for judicial review:

(a)  The applicant is a genuine non-refoulement claimant who faces danger, harassment and torture in his country, and is unable to find any place to stay safely in his country; and

(b)  The Director rejected the applicant’s claim without any proper inquiry and without carefully understanding his situation.

8.  However, the applicant did not provide any particulars in support of his grounds or state what mistakes the Board was allegedly to have made.

9.  At the hearing, this court asked the applicant whether he had any further grounds he wished to submit in support of the Leave Application. The applicant only stated that he relied on all the documents that he had submitted, and that there was nothing further to add.

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, after having asked the applicant questions at the hearing with the assistance of the interpreter, the Board did not accept that there was any probable truth in the narrative of the applicant’s claim. In the risk assessment, the Board found that the applicant would unlikely be at risk of harm if he were refouled. The Board was further satisfied that there was reasonable state protection available to the applicant in his village. 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 in the Board’s Decision. The applicant has not 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.  The Form 86 is amended on the court’s own motion.

13.  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