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

HCAL 1287/2020

[2025] HKCFI 4162

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1287 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;

Application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  The Applicant is from Pakistan.  By a Form 86 dated and filed on 24 June 2020 (“Form 86”), and a supporting affirmation also dated and filed on 24 June 2020 (“the Affirmation”), he sought leave to apply for judicial review of a decision of the Non‑Refoulement Claims Petition Office (“NRCPO”) dated 4 June 2020 (“NRCPO Decision”)[1], which was exhibited to his Affirmation.

2.  The Applicant sought an oral hearing of his application, at which he appeared and made some oral submissions, which I deal with below. 

3.  I will use the abbreviations and definitions from the NRCPO Decision unless otherwise specified herein.

Background

4.  This is set out in the NRCPO Decision and the USM 1218 Decision (defined below). I will not repeat the contents thereof, but in summary:

(1)  The Applicant claimed non-refoulement relief on the basis that if he were sent back to Pakistan, he would be killed by sons of his paternal uncle, Mustafa;

(2)  The Applicant’s claim was assessed on the basis of Torture Risk[2], BOR 3 Risk[3], and Persecution Risk[4] and was rejected as not being substantiated in a decision of the Director of Immigration (“Director”) dated 12 March 2015 (“Director’s 1^st Decision”);

(3)  The Applicant filed a Notice of Appeal/Petition against the Director’s 1^st Decision to the TCAB/NRCPO, which held an oral hearing on 4 November 2015 at which the Applicant gave evidence;

(4)  The TCAB/NRCPO rejected the Applicant’s claims that he faced BOR 3 Risk, Persecution Risk, or Torture Risk in a decision dated 29 February 2016 (“USM 1218 Decision”)[5]. No further steps were or have been taken by the Applicant in relation to the USM 1218 Decision;

(5)  The Director by a letter dated 18 January 2017 invited the Applicant to submit additional facts relating to an assessment of BOR 2 Risk[6]. The Applicant failed to do so. The Director then found, by a decision dated 2 February 2017 (“Director’s Further Decision”), that the Applicant had failed to establish BOR 2 Risk in relation to his non-refoulement claim;

(6)  On 10 April 2017 the Applicant petitioned to the NRCPO for relief against the Director’s Further Decision. The NRCPO was constituted by the same adjudicator who had made the USM 1218 Decision; and

(7)  On 17 April 2020 the NRCPO held a hearing in relation to the Applicant’s petition. It subsequently handed down the NRCPO Decision on 4 June 2020, in which it found that BOR 2 Risk had not been established, dismissed the petition, and confirmed the Director’s Further Decision.

Legal Principles

5.  An applicant, even one acting in person, is required to identify the grounds of judicial review clearly and succinctly in the Form 86, and to fully and frankly disclose all material facts and potential legal answers (Ho Loy & Another v Director of Environmental Protection, unrep.  HCAL 21/2015, 22 December 2016, Chow J. (as he was then) at §142; Leung Kwok Hung, unrep., HCAL 83/2012, 28 September 2013, Lam J. (as he was then) at §35; Begum Khadija [2018] HKCA 571; Khan Kamran [2020] HKCA 380).

6.  It is trite that the role of the Court in a judicial review is not to provide a further avenue of appeal, and that the Court should not usurp the role of the TCAB/NRCPO which is (and together with the Director are) the primary decision‑makers.  The assessment of evidence, COI materials, and credibility, risk of harm, state protection and viability of internal relocation are primarily within the province of the TCAB/NRCPO and the Director, which are entitled to make evaluations based on the evidence available and to decide the weight to be given to them.  While the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, the 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/NRCPO.  (Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; Nupur Mst v Director of Immigration [2018] HKCA 524; Re Kartini [2019] HKCA 1022; Re Rupinder Singh [2021] HKCA 886).

7.  In order for me to give leave for judicial review, I have to be satisfied that there is an intended ground of review which is reasonably arguable, which is one that enjoys a realistic prospect of success (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676). As a leave application of this sort is meant to be a filtering process, I am not expected to give elaborate reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23).

Discussion

8.  The Applicant has not identified or set out any grounds of judicial review in the Form 86.  The Affirmation merely says “I request you to revil(sic) my case, because my life is very much danger in my country, its(sic) a request you to allow me to stay safe in Hong Kong.” However, the role of the Court in a judicial review is not to provide a further avenue of appeal, and judicial review is not an avenue for revisiting the assessment in the hope that the court may consider the matter afresh absent any legal error.

9.  As the Applicant has not identified or set out any grounds of judicial review in the Form 86 or Affirmation, there is no allegation of any procedural unfairness in relation to, of any error of law in, and/or of any irrationality/failure to meet the enhanced Wednesbury test in, the TCAB Decision.

10.  Nevertheless, and given the seriousness of the issues at hand, I have considered the NRCPO Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard and bearing in mind the need for a high standard of fairness.

11.  The NRCPO set out the Applicant’s procedural history, including the USM 1218 Decision, the contents of the Applicant’s petition to the NRCPO and the NCF, the incidents relied on by the Petitioner, and the basis of his claim. It then outlined the contents of BOR 2 and assessed BOR 2 Risk having regard to the facts as alleged by the Applicant, and concluded that on the evidence it did not believe that he would face BOR 2 Risk if he were refouled. The petition was dismissed and the Director’s Further Decision was confirmed.

12.  I do not, from my examination and scrutiny, see that the Applicant has any reasonably arguable case that there was procedural unfairness (bearing in mind the need for a high standard of fairness), an error of law, and/or irrationality/failure to meet the enhanced Wednesbury test that is sufficient to vitiate the NRCPO Decision.  The assessment, reasoning, and findings regarding the evidence and risk of harm were matters primarily within the province of the decision-making body, which was entitled to make evaluations based on the evidence available and to decide the weight to be given to such.  The decision-maker was also equally entitled to and did apply such in its assessment of BOR 2 Risk. 

13.  At the hearing before me the Applicant said that he was getting medical treatment (as to which he produced some medical documents bearing various dates from 2024 to 2025), claimed (without any supporting proof) that such treatment was very expensive in Pakistan, and asked to be given some time after his medical treatment then he would leave Hong Kong. However, he said that the medical documents were not related to his case.

14.  The documents are inadmissible as I am not satisfied that they would probably have had an important influence on the result of the case, and hence am not satisfied that they fulfil the second condition in Ladd v Marshall [1954] 1 WLR 1489. I also do not see how the Applicant’s allegations in his Affirmation or as made at the hearing are relevant to or assist his application for leave, given the findings in, and my analysis of, the NRCPO Decision and the nature of judicial review proceedings.

15.  There is hence no basis for the court to intervene by way of judicial review, and I am not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success.

Conclusion

16.  In the circumstances, I have ordered that the application for leave to apply for judicial review be dismissed and made the other orders above.

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