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

HCAL 1407/2020

[2025] HKCFI 4425

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1407 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;

1.   The Form 86 is amended of the Court’s own motion, naming only the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office as the Putative Respondent, naming only the Director of Immigration as the Putative Interested Party, and substituting “decision by Torture Claims Appeal Board/Non-Refoulement Claims Petition Office” in place of the words “decision by Appeal Board”; and

2.   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 dated and filed on 7 July 2020 (“Form 86”), and a supporting affirmation also dated and filed on 7 July 2020 (“the Affirmation”), he sought leave to apply for judicial review of a decision of the Torture Claims Appeal Board (“TCAB”) (which was also a decision of the Non-Refoulement Claims Petition Office (“NRCPO”)) dated 26 June 2020 (“TCAB Decision”)[1], which was exhibited to his Affirmation. 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 appear at the scheduled hearing on 7 August 2025. I have hence dealt with his application on the papers.

3.  I have amended the Form 86 to properly identify the putative respondent, the putative interested party, and to reflect the nature of the decision.

Background

4.  This is set out in the TCAB Decision. I will not repeat the contents thereof, but in summary:

a.  The Applicant claimed non-refoulement relief on the basis that if he were sent back to Pakistan, he would be harmed or killed by people from PML-N;

b.  The claim was assessed on the grounds of Torture Risk[2], BOR 3 Risk[3], and Persecution Risk[4] and was rejected by the Director of Immigration (“Director”) in a decision dated 22 January 2016. It was subsequently also assessed and rejected on the ground of BOR 2 Risk[5] by the Director in a decision dated 23 March 2017;

c.  As the Applicant had petitioned/appealed to the TCAB/NRCPO, it held a hearing in relation to the Applicant’s non-refoulement claims on 5 May 2017; and

d.  The TCAB/NRCPO issued the TCAB Decision on 26 June 2020, in which the decision-maker held that the Applicant’s claim for non-refoulement relief failed in relation to each of the four types of risk, and confirmed both of the Director’s decisions.

Legal Principles

5.  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).

6.  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).

7.  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

8.  As the Applicant has not identified or set out any grounds of judicial review in the Form 86 or Affirmation, there is no allegation of any procedural unfairness in relation to, of any error of law in, and/or of any irrationality/failure to meet the enhanced Wednesbury test in, the TCAB Decision.

9.  However, 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.

10.  The TCAB/NRCPO set out the Applicant’s procedural and immigration history, the four relevant types of risk, the grounds of appeal, and the nature of and events at the hearing (Paragraphs 1 to 10). This was followed by the evidence and relevant principles as to its consideration (Paragraphs 11 to 17) and the TCAB/NRCPO’s findings of fact (Paragraphs 18). The decision-maker then assessed each of the four types of risk and found that on the evidence none of the grounds had been established given the lack of any intention to harm or kill the Applicant, the change in government, the availability of state protection, and hence given the risk of harm. Accordingly, the claim for non-refoulement protection failed and the Director’s Decision was affirmed (Paragraphs 19 to 50).

11.  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 the TCAB Decision and justify the grant of leave.  This is especially so as to the assessment, reasoning, and findings regarding the risk of harm and state protection (which are matters primarily within the province of the decision-maker), and hence as to the decision-maker’s conclusions regarding each of the four types of risk.

12.  In the Affirmation, the Applicant says that he is not satisfied with the TCAB Decision and claims that he is unable to go back because his “life is not save in my own country. Please help me to stay here until my problem will be solved”. I do not see how such bare and unsubstantiated allegations are relevant to or assist the application for leave given the findings in, and my conclusions above as to, the TCAB Decision, and as judicial review proceedings are not a further avenue of appeal or for revisiting the assessment in the hope that the court may consider the matter afresh absent any legal error (Lakhwinder Singh, supra).

13.  There is hence no basis for the court to intervene by way of judicial review, and I am not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success.

Conclusion

14.  In the circumstances, I have ordered that the application for leave to apply for judicial review be dismissed and made the other orders above.

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