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

HCAL 1492/2020

[2025] HKCFI 5639

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1492 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;

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 15 July 2020 (“Form 86”), which was accompanied by a supporting Affirmation also filed on 15 July 2020 (“the Affirmation”), the Applicant sought leave to apply for judicial review of a decision of the Torture Claims Appeal Board (“TCAB”)/Non-Refoulement Claims Petition Office (“NRCPO”) made on 9 July 2020 (“the TCAB Decision”)[1]. I will use the abbreviations and definitions from the TCAB Decision unless otherwise specified herein.

2.  The Applicant sought an oral hearing of his application, but did not attend the hearing scheduled for 21 August 2025. I have hence dealt with his application on the papers.

Background

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

(1)  The Applicant claimed non-refoulement relief on the basis that if he were sent back to Pakistan, he would be harmed or killed by BK, a landlord in his home village, who had accused the Applicant of stealing his fighting dog named Kamlo;

(2)  The claim was assessed on the grounds of Torture Risk[2], BOR 2 Risk[3], BOR 3 Risk[4], and Persecution Risk[5] and was rejected by the Director of Immigration (“Director”) in a decision dated 27 March 2020 (“Director’s Decision”);

(3)  The Applicant appealed/petitioned to the TCAB/NRCPO, which held a hearing in relation to the Applicant’s non-refoulement claim on 24 June 2020; and

(4)  On 9 July 2020 the TCAB/NRCPO issued the TCAB Decision, in which it held that he had failed to establish any of the four grounds to claim non-refoulement protection and confirmed the Director’s Decision.

Legal Principles

4.  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).

5.  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).

6.  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

7.  The Form 86 contains a single ground of judicial review which has been copied almost word for word from other cases, namely:

“I believe that the Director of Immigration and the Adjudicator of Appeal Board reached the decision wrongly in assessing my Non‑refoulement claim. The decisions were not reasonable and fair (as required by the Wednesbury test). Indeed, the right to life is protected under Article 28 of the Basic Law and Article 2 of the Bill of Rights. In practice, the right to life is mainly protected by the criminal law and it must be protected from extra-judicial killings such as the applicant may face if I am deported back to his country.”

8.  However, given the appeal/petition to the TCAB/NRCPO, the Director’s Decision was (absent exceptional circumstances, of which none have been suggested to me) no longer susceptible to judicial review (Moshsin Ali [2018] HKCA 549; Yeni Setyawati v Torture Claims Appeal Board [2019] HKCA 1310; Sherpunja Thapa Kul Prasad [2022] HKCFI 2434 §18). The portion of such that that relates to the Director and the Director’s Decision is hence not reasonably arguable and must be dismissed.

9.  Moreover, what remains of the ground is entirely inadequate as it merely consists of generic, vague, and unparticularised assertions using selected keywords and phrases without reference to any underlying facts or matters establishing why, how, and where each of those complaints arise in relation to the TCAB Decision. Such general assertions or propositions of law without particulars are not effective grounds to support a judicial review and cannot assist an applicant (Re Mizan Sikder [2019] HKCA 20 at §17; Re Aziz Nasir [2019] HKCA 578 at §24; Re Kharsu Numan [2019] HKCA 626 at §24; Re Salim Ahmed [2020] HKCA 244 at §20; Haider Khalil [2021] HKCA 223 at §16; Akhondo Shakhil [2021] HKCA 1616 at §15).

10.  Nevertheless, given the seriousness of the issues at hand, I have considered the TCAB Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard and bearing in mind the need for a high standard of fairness, as well as what remains of the alleged ground.

11.  The TCAB/NRCPO outlined the Applicant’s background, immigration and procedural history, and the nature of the process before it (Paragraphs 1 to 7). It then addressed the core assertions advanced by the Applicant, and relevant principles in relation to the burden and standard of proof and each of the four relevant grounds (Paragraphs 8 to 18).

12.  This was then followed by consideration of the evidence and COI, which included details of salient matters, and of how opportunities had been given to the Applicant to comment on relevant matters (Paragraphs 19 to 39).

13.  The TCAB/NRCPO then set out its findings of fact which included that it did attached no credence at all to, and did not accept, the claim that the Applicant had been accused of stealing a dog belonging to BK. It also found there was no credible evidence to show why BK would want to harm or kill him, as to the existence of 2 people who the Applicant claimed were members of the MNA representing the PTI and that BK was close to, that even if the latter two existed there was no credible evidence to show that they would want to kill or harm him based on the accusation regarding BK’s dog, and indeed that BK had any connection to or was associated with any public official. It accordingly rejected those core aspects of the Applicant’s claim, further rejected the claim that the accusation of dog theft had placed the Applicant at any risk of harm, and did not accept that the Applicant was a reliable or credible witness. In relation to issues arising in relation to the four relevant bases, it found that there was no, or no reliable and credible, evidence that BK had any connection to or was associated with any public official, that the facts gave rise to any Refugee Convention reason, that the state or government of Pakistan was unwilling or unable to afford the Applicant state protection (or was unwilling to help him for a Refugee Convention reason), that he had suffered physical and/or mental suffering of the requisite severity, or that BK had treated him with an intention relevant to Torture Risk or with an intention which related to the interest/policies of the state. Ultimately it did not accept that the Applicant had established that he had a well-founded fear. (Paragraphs 40 to 56)

14.  The TCAB/NRCPO accordingly found that the Applicant had failed to establish any of the four relevant grounds, and observed that in any event it would not be unduly harsh for him to relocate within Pakistan. The Director’s Decision was hence affirmed (Paragraphs 57 to 66).

15.  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 conclusions in the TCAB Decision, and that justifies the grant of leave. This is especially so as to the assessment, reasoning, and findings regarding the credibility, evidence, risk of harm, state protection, and internal relocation, which are matters primarily within the province of the decision-making body. Nor is there any reasonably arguable public law basis to vitiate the decision-maker’s conclusions or to justify the grant of leave in relation to Torture Risk, Persecution Risk, BOR 3 Risk, and BOR 2 Risk.

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

Conclusion

17.  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