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

HCAL 201/2020

[2025] HKCFI 2034

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 201 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.   Form 86 be amended, naming only the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office as the Putative Respondent and the Director of Immigration as the Putative Interested Party.

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

Observations for the Applicant:

Introduction

1.  By Form 86 (“Form 86”) dated 20 January 2020, the Applicant applies for leave to apply for judicial review (“the Leave Application”) of the decision of the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (“the Board”) dated 8 January 2020 (“the Board’s Decision”) confirming the decision of the Director of Immigration (“the Director”) dated 9 August 2019 (“the Director’s Decision”), which rejected his non-refoulement claim on all applicable grounds (“the Grounds”) under the Unified Screening Mechanism (USM).

2.  In Form 86, the Applicant has mistakenly referred the Director as one of the proposed respondents and the Board as a proposed interested party, which I have corrected on my own motion.

Background

3.  The Applicant’s personal background, the facts alleged by him in support of his non-refoulement claim that he would be ill-treated or killed in Pakistan by his girlfriend’s family members, and the immigration and procedural history, etc. can be found in the Board’s Decision.  It is not necessary for me to reiterate them, and where appropriate, reference can be made to the Board’s Decision, the hyperlink to which is included below[1]. Unless otherwise indicated, I shall adopt the Board’s abbreviations and descriptions herein.

Discussion

4.  The Applicant’s intended challenge of the Board’s Decision is obviously not reasonably arguable with any realistic prospects of success (see Peter PoFunChan v Winnie Cheung & Another (2007) 10 HKCFAR 676) and leave should be refused.  The requirement for leave to apply for judicial review should be properly invoked to filter out unarguable challenges (see section 21K(3) of the High Court Ordinance, Cap. 4 and Order 53 rule 3(1) of the Rules of the High Court, Cap. 4A).

5.  In the present case, the Applicant is unable to identify any grounds to support the judicial review as required (see Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015 (22 December 2016) at §142).  Apart from stating that he disagrees with the Board, he has not provided any matters of substance, breaching his duty to make full and frank disclosure of all material facts known to him.

6.  I have reminded myself of the enhanced standard to be adopted in scrutinizing the decision of the Board due to the seriousness of the issues involved.  As can be seen from the Board’s Decision, it is clear that, after considering the events alleged by the Applicant, the Board assessed his credibility and made findings based on the available evidence, applying the law and relevant legal principles relating to the issues and the Grounds.  The Board did not accept that the Applicant had provided a true account of factual events regarding his encounter and association with Aneela, or the oppression he had allegedly received from her family.  The Board further stated that should it be wrong on the above fact finding, the Applicant’s case in any event fell short of showing risks of torture, persecution, or breach of his BOR 2 or BOR 3 rights.

7.  The Applicant is unable to demonstrate any errors of law committed by the Board or that there was any procedural unfairness or irrationality in the Board’s Decision for the Court to intervene by way of judicial review.  It is well-established that the role of the Court in a judicial review is not to provide a further avenue of appeal.  The Board is the primary decision maker.  Even though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issues at hand, the Court should not usurp the role of the Board.  Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board.  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 Board (see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163).

Conclusion

8.  For these reasons, I make an order that Form 86 be amended as described above and the Leave Application 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