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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
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Waqas Muhammad |
Applicant |
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and
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
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Putative Respondent |
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and
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Director of Immigration
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Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge (Non-refoulement Claims) Martin Wong:
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.
Dated the 25thday of April 2025
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( Seline Sze )
for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 25/04/2025
Waqas Muhammad
Applicant’s ref. no:
Nil
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 25/04/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 16360/19/10/9/P3224
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 710/19 (formerly RBCZ 10481/19) [T2134]
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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