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HCAL 1650/2020
[2025] HKCFI 5560
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1650 of 2020
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BETWEEN
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Maalik Muhammad |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge (Non-Refoulement Claims) Vincent Lung:
(1) Form 86 be amended, naming the Director of Immigration as the Putative Interested Party.
(2) The application for leave to apply for judicial review out of time be dismissed.
Observations for the Applicant:
Introduction
1. By a Form 86 filed on 13 August 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review against the decision by the Torture Claims Appeal Board (the “TCAB”) dated 21 November 2019 (the “2nd TCAB Decision”), which affirmed the decision of the Director of Immigration (the “DOI”) dated 22 August 2017.
2. The 2nd TCAB Decision only concerned the Applicant’s claim under Article 2 of the Hong Kong Bill of Rights Ordinance (“BOR2”). There was an earlier decision from the TCAB dated 17 February 2017 (the “1st TCAB Decision”) which affirmed the DOI’s decision dated 21 January 2015 regarding the Applicant’s claim under the other 3 applicable grounds. The procedural chronology is set out in [1-10] of the 2nd TCAB Decision.
3. I regard the Form 86 to be a challenge against the 2nd TCAB Decision only and not against the 1st TCAB Decision. This is because the subject decision described in the Form 86 referred specifically to a date 21 November 2019 (which was the date of the 2nd TCAB Decision). Further, the 2nd TCAB Decision was the only exhibit to the supporting affirmation. These matters clearly show that the Applicant only sought to challenge the 2nd TCAB Decision (exclusively relating to his claim under BOR2) and no more.
4. I amend the Form 86 on my own motion to name the DOI as the putative interested party.
5. The Applicant requested for a hearing of this application and he attended the same. When asked if he had anything to add he confirmed that he had not.
Background
6. The Applicant is a national of Pakistan. He seeks non-refoulement protection on the basis that he would be harmed or killed if he is to go back. He was a supporter of a political party known as PPP. Upon its candidate winning an election in 2008, the Applicant celebrated with other PPP supporters which led to the supporters of PPP’s political rivals to take revenge. The local police needed to intervene and after the Applicant was released from police detention, he received an anonymous call threatening to kill him. The Applicant’s personal background and the relevant facts have been fully set out in the 1st and 2nd TCAB Decisions, which can be viewed through a hyperlink[1] [2]. I shall therefore not repeat them.
Discussion
7. The leave application operates as a filtering process and there is no requirement or expectation to give elaborate reasons for my decision: Re Zunariyah [2018] HKCA 14 at [23]. It is sufficient to state my observations after considering the 2nd TCAB Decision and the materials adduced by the Applicant.
8. I remind myself that in a judicial review, this court does not provide a further avenue of appeal. Though in non-refoulement cases an enhanced standard in scrutinizing the decision of the TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI are the primary decision-makers. A finding of fact is exclusively within the realm of the TCAB, and 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 TCAB: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)]. There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.
9. In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (unreported, HCAL 21/2015, 22 December 2016) at [142], and further to make full and frank disclosure of all material facts to be verified by an affidavit.
10. The Applicant did not point to any error of law, procedural unfairness or irrationality of the 2nd TCAB Decision in the Form 86. In his supporting affirmation he merely asserted that he was not satisfied (doing my best to understand the language used by the Applicant) with the 2nd TCAB Decision.
11. As can be seen from the 2nd TCAB Decision, the TCAB took into account the Applicant’s case [2nd TCAB Decision 7-8] by referring to the findings in the 1st TCAB Decision [1st TCAB Decision 17-19], and found that on the basis of the same, applying also the correct legal principles in respect of BOR2 claims [2nd TCAB Decision 11], the Applicant’s allegations were insufficient to make out any of the applicable grounds [2nd TCAB Decision 14-17]. The Applicant presented no new or additional material when compared to the deliberation of the 1st TCAB Decision [2nd TCAB Decision 15(ii)], and it is noteworthy that the TCAB held in the 1st TCAB Decision that the Applicant’s evidence was incredible and he was not genuinely seeking non-refoulement protection [1st TCAB Decision 18-20]. There was accordingly no factual or evidential basis for any claim under BOR2. The TCAB also held in the 1st TCAB Decision that state protection and internal relocation were available upon considering Country of Origin information [1st TCAB Decision 24-27, 34-36].
12. All in all, I do not see any errors of law, procedural unfairness or irrationality in the 2nd TCAB Decision, despite rigorous examination and anxious scrutiny. The Applicant’s intended challenge to the 2nd TCAB Decision is not reasonably arguable, and accordingly the application for leave to apply for judicial review is dismissed. I further note that the application was brought out of time, given that Order 53 rule 4(1) requires the leave application to be taken out within 3 months after the 2nd TCAB Decision was made. Since I have held that the application is without merit, I also refuse to grant an extension of time (there was in any case no explanation for the delay).
Dated the 19th day of November 2025
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(Gladys Lee)
for Registrar, High Court
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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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 19/11/2025
Maalik Muhammad
Applicant’s ref. no:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors 19/11/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 871/15/2/19/P264
BOR 969/17/9/7/P255
Director of Immigration
Putative Interested Party’s ref. no.:
RBCZ 9000674/17
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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