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

HCAL 3860/2019

[2025] HKCFI 1627

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3860 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 application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 27 December 2019 (the “Form 86”), the Applicant applied for leave to apply for judicial review of the decisions by the Director of Immigration (the “DOI”) dated 16 October 2013 and 27 June 2018 respectively and also the decision of “the Adjudicator” dated 20 December 2019. He named the DOI and “the Adjudicator” as the proposed respondents.

2.  From the papers filed for this application, there was a decision by the Torture Claims Appeal Board (the “TCAB”) dated 20 December 2019 (the “TCAB Decision”) which affirmed both of the two decisions by the DOI. As the hearing before the TCAB was de novo, the proper subject of judicial review should be the TCAB Decision.

3.  I accordingly amended the Form 86 on my own motion and named only the TCAB as the putative respondent and the DOI as a putative interested party.

4.  The Applicant requested for a hearing of this application and attended the same. When asked if he had anything to add he confirmed that he had not.

Background

5.  The Applicant is a national of Pakistan. He seeks non-refoulement protection on the basis that he will be harmed or killed by his uncles if he is returned due to a land dispute. His personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be assessed through a hyperlink[1], and I shall not repeat the same herein.

Discussion

6.  In a judicial review, this court does not provide a further avenue of appeal. Though in non-refoulement case 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. 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, [14(1)]). There must be a reasonably arguable claim with a realistic prospect of success before leave for judicial review will be granted (Peter Po Fun Chan v Winnie Cheung & Anr (2007) 10 HKCFAR 676).

7.  In his affirmation filed in support of the Form 86, the Applicant has not stated any error of law, procedural unfairness or irrationality of the TCAB Decision. In his Form 86, the Applicant did attach a set of grounds on which relief is sought, however the complaints therein were but generic criticisms such as weight to be attached to evidence or mere assertions that different conclusions should have been reached.

8.  Looking at the TCAB Decision, the TCAB identified the correct legal principles in respect of the four applicable grounds under the USM [6-17]; all the available evidence was placed before the TCAB and it had carefully considered the same [18-39]; with all these in mind, the TCAB came to the conclusion that none of the four grounds was made out [40-56].

9.  The TCAB further concluded that internal relocation was available to the Applicant as well [57-61].

10.  All in all, I have not detected any errors of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.

Conclusion

11.  For the above reasons, I am not satisfied that this court should intervene by way of judicial review. I therefore dismiss the application.

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