NAWAZ MUHAMMAD v. NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1341/2020

[2025] HKCFI 5227

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1341 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 the Applicant being absent in open court;

1.  The Form 86 is amended on the Court’s own motion, naming only the Non-refoulement Claims Petition Office as the Putative Respondent, and only the Director of Immigration as the Putative Interested Party; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  The Applicant is a national of Pakistan. By a Form 86 filed on 29 June 2020 (“Form 86”), which was accompanied by a supporting Affirmation also dated and filed on 29 June 2020 (“the Affirmation”), the Applicant sought leave to apply for judicial review of a decision (said by him to be one of the Torture Claims Appeal Board (“TCAB”), but which was actually one of Non-Refoulement Claims Petition Office (“NRCPO”)) made on 15 June 2020 (“the NRCPO Decision”)[1] and which was exhibited to the Affirmation. I will use the abbreviations and definitions from the NRCPO Decision unless otherwise specified herein.

2.  The Applicant sought an oral hearing of his application. He did not, however, attend the oral hearing on 15 August 2025. I have hence dealt with his application on the papers.

3.  I have amended the Form 86 of my own motion to reflect the identity of the proper Putative Respondent, and the proper Putative Interested Party.

Background

4.  This is set out in the NRCPO Decision. While I will not repeat the contents thereof, in summary and in relation to the assessment of his claim:

(1)  The Applicant claimed that if he were sent back to Pakistan, he would be harmed or killed by the family members of his girlfriend in Pakistan;

(2)  The claim was initially made on the basis of Torture Risk[2] and was rejected by the Director of Immigration (“Director”) in a decision dated 25 October 2013 (“Director’s Decision”);

(3)  As no appeal was filed against the Director’s Decision, the Torture Risk claim was hence finally determined in accordance with s. 37V(2)(a) Immigration Ordinance (Cap. 115);

(4)  The Applicant’s claim for non-refoulement protection was then assessed on all applicable remaining grounds, namely BOR 2 Risk[3], BOR 3 Risk[4], and Persecution Risk[5], and was rejected by the Director in a decision dated 31 May 2018 (“Director’s Further Decision”);

(5)  The Applicant petitioned to the NRCPO, which held a hearing in relation to the Applicant’s non-refoulement claim on 23 April 2020; and

(6)  The NRCPO issued the NRCPO Decision on 15 June 2020, in which it found that the Applicant’s appeal/petition failed on all applicable grounds 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.  As the Form 86 does not identify any grounds of judicial review, there is no allegation of procedural unfairness in relation to, and/or of any error of law in, and/or any irrationality/failure to meet the enhanced Wednesbury test in, the NRCPO Decision.

9.  Nevertheless, 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.

10.  The NRCPO set out the Applicant’s procedural and immigration history, and the nature of the proceedings and documents before it (Paragraphs 1 to 7). The decision-maker then referred to the relevant law as attached to the decision (Paragraph 8, and Attachment Paragraphs 1 to 17), summarised the Applicant’s claims as had been set out in writing (Paragraphs 9 to 22), and addressed the conduct of and issues and evidence raised at the hearing (Paragraphs 23 to 33).

11.  The NRCPO then set out its assessment of the Applicant’s credibility and his claims, and its findings of fact, with reference to adequate and salient reasons. It found that the Applicant had exaggerated his claims and did not accept that this was due to any inability to recall events. It noted that the Applicant had conceded that his girlfriend’s family had not in fact attempted to kill him, and had at no time harmed either him or any member of his family. The decision-maker did not accept that the Applicant’s claim that he would be harmed or killed by them if returned had any credibility. He also found that the Applicant had not established a basis for his claim that there was any real risk, or reasonable chance, that he would face serious harm or persecution, if refouled, and that the Applicant had not established substantial grounds which supported the conclusion he would face a real risk of ill-treatment as claimed if refouled (Paragraphs 34 to 44).

12.  Given such findings, the NRCPO unsurprisingly found that the Applicant had failed to establish any of the three types of risk, that his claims for protection on such bases failed, and confirmed the Director’s Further Decision (Paragraphs 45 to 52).

13.  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 or justify the grant of leave. This is especially so as to the assessment, reasoning, and findings regarding the evidence, credibility, and risk of harm, which are matters primarily within the province of the decision‑making body. Nor do I see any reasonably arguable public law basis to vitiate the decision‑maker’s conclusions regarding Persecution Risk, BOR 3 Risk, and BOR 2 Risk.

14.  I am therefore not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success.

Conclusion

15.  In the circumstances, I have made the orders above, including that the 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