MUNAF ABDUL alias ABDUL MANAF v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2831/2019

[2025] HKCFI 3978

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2831 of 2019

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;

The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 26 September 2019, 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 20 September 2019 (“Board’s Decision”) dismissing the applicant's appeal against the decision of the Director of Immigration (“Director”) dated 7 May 2018. (“Director’s Decision”) rejecting the applicant's non-refoulement claim.

2.  At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 12 June 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 his updated address.

Background

3.  The background as taken from the respective decisions of the Director and the Board referred to above can be briefly stated as follows.

4.  The applicant is a national of Pakistan[1].  On 9 November 2015, he surrendered himself to the Immigration Department.  Upon enquiry, he claimed to have entered Hong Kong without permission by travelling by boat from Shenzhen on 8 November 2015. The applicant lodged his non-refoulement claim 15 June 2016.

5.  The applicant’s claim was considered under all applicable grounds i.e. torture risk^[2], BOR 2 risk^[3], BOR 3 risk^[4] and persecution risk^[5] under the USM.^[6]  The claim was based on a fear that if refouled, he would be harmed or killed by the family of his paternal uncle, Ashiq Hussain, in particularly his sons, Abbas Ali and Khalil Ahmed. The applicant flouted the extended family’s tradition of marrying paternal cousins. Instead, he secretly married his maternal cousin.  Ashiq’s branch of the extended family therefore believed that the applicant was no longer entitled to his share of the family’s land.

6.  According to the applicant, his 3 brothers married 3 of Ashiq’s daughters.  It was expected of him that he would marry Ashiq’s remaining daughter.  However, in 2000, he secretly married his maternal cousin.  When the family discovered his secret marriage, his brothers were unhappy. His cousins, Abbas Ali and Khalil Ahmed, were enraged particularly.

7.  In around 2001, while the applicant was working at the family’s farmland, Khalil Ahmed suddenly attacked him with a sword and caused a deep cut at his upper left thigh.  The applicant sought treatment at a nearby clinic where he stayed for 2 nights.  He took around 1 month to recover from his injuries.

8.  Thereafter, the applicant moved to Nankana City to live with his brother-in-law.  In around 2010, the applicant heard from his friend that his cousins, Abbas Ali and Khalil Ahmed, were determined to kill him.  With the assistance from his brother-in-law, the applicant travelled to Leeds, United Kingdom, where he overstayed for 5 years.  In 2015, he was arrested by the UK Border Agency and eventually deported to Pakistan.

9.  Upon returning to Pakistan, the applicant stayed with his wife at Nankana City.  His mother visited him there and told him that Ashiq’s family was still furious at him, and that he should not return home.  Thus with his brother-in-law’s help, he obtained a passport and Chinese visa, and departed Pakistan for mainland China.

10.  In the Director’s Decision, the Director decided against the applicant’s claim on all applicable grounds.  Hence, the applicant’s appeal to the Board against the Director’s Decision.

11.  On 1 August 2019, the applicant attended a hearing before the Board.  At the Board hearing, the applicant gave oral testimony and answered questions from the Board.  

12.  The Board found that the applicant’s account not credible, and his account was rejected as untruthful due in large part to major discrepancies between his testimony at the Board hearing and his prior evidence given to the Director. The Board raised these discrepancies with the applicant, but he was unable to provide a satisfactory explanation.  The Board concluded that there was no real risk of harm.  The Board also found that reasonably sufficient state protection would be available and that internal relocation would be viable. Thus, the Board dismissed the applicant’s appeal and confirmed the Director’s Decision.

Legal principles applicable to judicial review

13.  As the Courts have repeatedly stated, determination of the merits of a non-refoulement claim is essentially a matter for the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them.  A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error.  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: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

Discussion and conclusion

14.  In his Form 86 and supporting affirmation, the applicant did not raise any grounds for judicial review. 

15.  At the hearing, this court asked the applicant whether he had any grounds he wished to submit in support of the Leave Application.  He said he had nothing to say. After he was reminded that he had not provided any written grounds in support of the Leave Application, the applicant only stated that he believed that the officer would have sympathy on him because he was a poor person. If he were to return home, he would be killed.

16.  It is plain that the applicant has not advanced any grounds in support of the Leave Application, in the Form 86 or otherwise, as to what basis the Board is said to have acted unlawfully or procedurally unfair in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.

17.  Having rigorously examined the Board’s Decision with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles relating to all the grounds mentioned above correctly identified the issues, and observed a very high standard of fairness. I am satisfied that the Board was entitled to reject the applicant’s claim after it found that the applicant’s account not credible.  The applicant advanced no grounds at all, whether written or at the hearing, in support of the Leave Application.  I find that it was perfectly open to the Board to come to its conclusion that the applicant failed to discharge his burden of proving the asserted fears and risks.

18.  For these reasons, I am not satisfied that the Leave Application is reasonably arguable with realistic prospects of success such that would enable this court to grant leave: see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

Order

19.  The applicant’s application for leave to apply for judicial review 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