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

HCAL 840/2020

[2025] HKCFI 4303

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 840 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 Applicant’s Form 86 be amended to name the Board as the only putative respondent, the DI as the only putative interested party and the Board’s Decision as the decision sought to be reviewed; and

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

Observations for the Applicant:

1.  The Applicant applied for leave to commence judicial review by a Form 86 filed on 8 May 2020 (“Form 86”) against the decision of the Torture Claims Appeal Board/ Non‑Refoulement Claims Petition Office (“the Board”) dated 25 April 2020 (which was actually dated 24 April 2020) (“the Board’s Decision”).  A copy of the Board’s Decision can be viewed by the following hyperlink[1].  

2.  The Board’s Decision was on appeal/petition from a decision of the Director Immigration (“the DI”) dated 1 August 2018 (“DI’s Decision”).  The DI and the DI’s Decision were also named as the putative respondent and the decision sought to be reviewed in the Form 86.  It is trite that after the Board’s decision on an appeal/petition is made, the DI’s original decision is superseded and generally should no longer be the subject of judicial review proceedings.  In the oral hearing of this application, after hearing my explanation on the law, the Applicant confirmed he would just seek to review the Board’s Decision.  On my own motion, the Applicant’s Form 86 is amended as per paragraph 1 of my order above.

3.  The Applicant is a national of Pakistan.  His non-refoulement claim was based on the fear of being harmed or killed by a money lender.  After conducting an oral hearing and assessing the evidence, the Board accepted the Applicant’s assertions that he had borrowed money in Pakistan which he was unable to repay, but the Board did not accept that he had a real risk of being killed or subjected to serious harm should he return to Pakistan.   The availability of internal relocation alternatives also served to reduce the risk of any ill-treatment to him.  The claim was therefore rejected. 

4.  The Applicant has set out a few grounds of judicial review in the Form 86 against the DI’s Decision and one ground against the Board’s Decision.  In view of the position stated in paragraph 2 of these Observations for the Applicant, I will only focus on the ground against the Board’s Decision.

5.  The Applicant complained that the Board had failed to make sufficient enquiry before finalizing its decision.  He said the Board stated that the Applicant had failed to provide credible evidence, and it was a failure to appreciate the fact that people in the Applicant’s position had limited option of bringing evidence with them to Hong Kong such that sufficient time should have been given to them.  The complaint is misconceived.  The Board accepted the Applicant’s factual claim, just the Applicant was not found to have risk of ill‑treatment justifying non-refoulement protection on the basis of the accepted factual position.  When the Board referred to “no credible evidence”, the Board was merely saying there was no credible evidence of genocide or mass violation of human rights in Pakistan, which was a matter for country of origin information but not a matter for the Applicant to provide evidence on his personal situation (as it was not the Applicant’s case that those had happened to him).  In the oral hearing before this Court, the Applicant did not bring out any other assertion regarding how to Board had failed to make sufficient enquiry. 

6.  I have reviewed the Board’s Decision vigorously.  In my judgment, the decision was supported by factual findings and the Board had conducted an anxious scrutiny of the available evidence and information.  It has been reiterated time and again that the primary responsibility for the factual assessment of whether any risk of ill-treatment exists lies with the Board.  In the absence of any errors of law, procedural unfairness or irrationality, the Court would not reopen the Board’s findings or make a determination on the case afresh.  The role of the Court in a judicial review is not to provide a further avenue of appeal (see Re Lakhwinder Singh [2018] HKCA 246).

7.  The leave application to apply for judicial review is thus 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