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

HCAL 456/2020

[2025] HKCFI 3371

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 456 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;

1.  The Form 86 be amended on the court’s own motion.

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

Observations for the Applicant:

Introduction

1.  By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 19 March 2020, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 3 March 2020 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 5 October 2018 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on all applicable grounds. The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000456_2020_files/the_Board's_Decision.pdf

2.  In his Form 86, the applicant named both the Board and the Director as the proposed respondents as well as the interested parties. As the Board should have the proper respondent and the Director the interested party, the Form 86 will be amended accordingly on the court’s own motion.

3.  The basis of the applicant’s claim was that he would be harmed or killed by Chaudhry Anwar and Chaudhry Javed or their associates on account of a police complaint made by the applicant against each of these persons concerning the murder of his friend. The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them. Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

4.  At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 23 May 2025. The applicant attended the hearing in person. After having heard from him, this court informed him that the decision would be reserved, and be sent to his updated address.

Discussion

5.  The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[1] It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

6.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[2], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

7.  In his Form 86, the applicant raised the following grounds:

(a)  The Board’s Decision was unreasonable and unfair;

(b)  Insufficient importance or weight was given to state acquiescence;

(c)  Though the Director listed relevant country of origin information (“COI”) that supported the applicant’s belief that the police in his country would not be able to protect him, such COI was not considered or given enough weight;

(d)  The Director showed an unfair attitude, and failed to meet the required high standards of fairness; and

(e)  It was procedurally improper and unfair when the Board failed to accept or reject the applicant’s explanations in relation to his response to questions. The Board also failed to take into account the nexus of political parties and official corruption, rendering him at risk for persecution.

8.  At the hearing, this court asked the applicant whether he had any further grounds he wished to submit in support of the Leave Application. The applicant stated that he would be relying on the grounds he had submitted and had nothing to say. The applicant also informed the court that he had married to a Hong Kong resident and would be granted a visa to stay in Hong Kong soon.

9.  As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality.[3]

10.  In the present case, the Board rejected the claim because it found that the applicant was not a truthful witness, due to significant inconsistencies between his oral evidence at the Board hearing and his prior written evidence. The Board drew the applicant’s attention to the inconsistencies, however he was unable to provide a satisfactory explanation. As a result, the Board concluded that he had fabricated the central elements of his claim. The Board did not accept that the applicant was targeted by CA or CJ, the latter of whom had also been deceased at the time when the applicant submitted his statement for his non-refoulement claim. Thus, the Board found that there was no real risk of harm, and that the issue of internal relocation did not arise. The Board also did not accept that there was a consistent pattern of gross, flagrant or mass violations of human rights in Pakistan. These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

11.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness. I am satisfied that the Board was entitled to find that the applicant’s central elements of his claim were fabricated, and rejected his claim. Most of the applicant’s written grounds are not related to the Board’s Decision. For those concerning the Board’s Decision, they are vague and do not condescend to particulars. Neither was the applicant able to provide any grounds at the oral hearing to challenge the Board’s Decision. The applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision. The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[4].

Application to withdraw

12.  On 25 July 2025, the applicant filed an affirmation to apply for the withdrawal of the Leave Application. In it, the applicant stated that he wanted to go back to his home country as his life would be safe there.

13.  Apart from the application to withdraw the Leave Application, there is nothing outstanding in this action. In the circumstances, I make an order to dismiss the Leave Application and hereby order the dismissal of the Leave Application: see Re Manik Md Mahamudun Nabi [2022] HKCA 471, Ngo Xuan Tuyen v Torture Claims Appeal Board [2024] HKCA 1140.

Orders

14.  The Form 86 be amended on the court’s own motion.

15.  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