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

HCAL 1602/2020

[2025] HKCFI 5430

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1602 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;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 3 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 20 July 2020 (the “2^nd TCAB Decision”), which affirmed the decision of the Director of Immigration (the “DOI”) dated 11 May 2017.

2.  The 2^nd 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 6 January 2017 (the “1^st TCAB Decision”) which affirmed the DOI’s decision dated 22 May 2015 regarding the Applicant’s claim under the other 3 applicable grounds. The procedural chronology is set out in [1-2] of the 2^nd TCAB Decision.

3.  The Form 86 is a challenge against the 2^nd TCAB Decision only and not against the 1^st TCAB Decision. This is made clear in the Form 86 by reference to the date of the subject decision under challenge. The supporting affirmation also only exhibited the 2^nd TCAB Decision but not the 1^st TCAB Decision. The present application is therefore only concerned with the Applicant’s claim under BOR2 (and no more).

4.  The Applicant requested for a hearing of this application and he attended the same.

Background

5.  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. The Applicant is a supporter of the Pakistan People’s Party, and was disliked by the supporters of a political rival known as PMLN. There was an assault incident against the Applicant by the PMLN supporters, and a Warrant of Arrest (“WOA”) was purported to have been issued by a Pakistan Magistrate saying that the Applicant had absconded and should be arrested, apparently because false charges were laid against the Applicant. The Applicant’s personal background and the relevant facts have been fully set out in the 2^nd TCAB Decision, which can be viewed through a hyperlink[1]. I shall therefore not repeat them.

Discussion

6.  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 2^nd TCAB Decision and the materials adduced by the Applicant.

7.  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.

8.  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.

9.  The Applicant did not point to any error of law, procedural unfairness or irrationality of the 2^nd TCAB Decision in the Form 86. In his supporting affirmation he merely asserted that he was not satisfied with the 2^nd TCAB Decision.

10.  As can be seen from the 2^nd TCAB Decision, the TCAB took into account the Applicant’s case [3.1-3.2] and found that on the basis of the same, applying also the correct legal principles in respect of BOR2 claims [5] and considering Country of Origin information [9.1.1, 9.4, 9.6, 9.14,], the Applicant’s allegations were insufficient to make out any of the applicable grounds [9-14]. Specifically, the TCAB found the WOA not to be a genuine document [9.1.2, 9.2], but in any case there was no BOR2 risk even if the WOA were genuine [9.3-9.12] because there was no risk to the Applicant’s life [4.2].

11.  At the hearing the Applicant handed up a document showing that 2 of his enemies attended the Pakistan police station on 5 July 2025, and they needed to wait for a third person to join them some time in February 2026 when the charges against the Applicant may be dropped. The Applicant informed me that everything would then be fine for him to return to Pakistan. These are nevertheless not matters relevant to the issues I need to deal with, namely the correctness or reasonableness of the 2^nd TCAB Decision (in the public law sense).

12.  All in all, I do not see any errors of law, procedural unfairness or irrationality in the 2^nd TCAB Decision, despite rigorous examination and anxious scrutiny. The Applicant’s intended challenge to the 2^nd TCAB Decision is not reasonably arguable, and accordingly the application for leave to apply for judicial review is 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