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

HCAL 3803/2019

[2025] HKCFI 1687

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3803 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;

1.  The Form 86 is amended on the Court’s own motion; and

2.  Leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 20 December 2019 (the “Form 86”), the Applicant applies for leave to apply for judicial review of a decision by the Torture Claims Appeal Board (the “TCAB”) dated 6 December 2019 (the “TCAB Decision”).  The Applicant has named “Torture Claim Appeal Board by immigration department” as the proposed respondent and “Torture Claim Appeal Board immigration department” as an interested party.

2.  I amended on my own motion the Form 86 to name the TCAB as the putative respondent and the Director of Immigration as a putative interested party.

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

Background

4.  The Applicant is a national of Pakistan.  He seeks non-refoulement protection on the basis of a threat to life by an individual as a result of dispute and fight after a cricket match.  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

5.  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).

6.  In his affirmation filed in support of the Form 86, the Applicant simply stated that he does not agree with the decision of the TCAB and did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision.

7.  At the hearing the Applicant asked for time to submit further evidence that he said was relevant.  I directed him to do so by 25 March 2025 and unless he does so, I would proceed to deal the application on paper with no further hearing.  He understood.  However, by 25 March 2025 he had filed nothing further.

8.  Turning to the TCAB Decision, the TCAB correctly identified the applicable principles to the four applicable grounds under the USM [6-17] and carefully considered all the evidence presented by the Applicant before coming to the conclusion that the Applicant’s allegations were not made out [18, 21-23].

9.  The TCAB then proceeded to analyse each of the four applicable grounds under the USM and came to the conclusion that none of them was made out [28-40].  The TCAB further concluded that internal relocation was viable and available to the Applicant in any event [41-45].

10.  All in all, I do not see 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