SHAKEEL MUHAMMAD v. NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1065/2021

[2026] HKCFI 1321

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1065 of 2021

  Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

1.   The Applicant’s Form 86 be amended to name the Non-refoulement Claims Petition Office as the putative respondent, its decision dated 24 August 2021 as the decision sought to be reviewed and the Director of Immigration as a putative interested party; and

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

Observations for the Applicant:

1.   By a Form 86 filed on 28 July 2021 (“Form 86”), the Applicant apparently sought leave for judicial review of the decision of the Torture Claims Appeal Board (“TCAB”) made on 13 August 2018.  However, from a reading of a copy of the decision attached to his supporting affirmation, it is obvious the decision made on 13 August 2018 was actually by the Director of Immigration (“DI”). 

2.   The Court has obtained documents from the TCAB’s Secretariat and noted that (i) the Applicant’s torture risk had been long assessed back in 2013 by DI and no appeal/petition was made against that; (ii) he later made a non-refoulement claim by supplementary claim form based on other applicable grounds under the unified screening mechanism, also in 2013; (iii) DI then made the aforesaid decision in 2018 and the Non-refoulement Claims Petition Office (“NRCPO”) heard the petition therefrom in 2020.  The NRCPO decided the petition on 24 August 2021 (“the NRCPO’s Decision”).  A copy of the Board’s Decision can be viewed by the following hyperlink[1].

3.  A copy of the NRCPO’s Decision has been obtained, in which the above history was clearly set out.  There was no assessment of torture risk therein as DI’s 2013 assessment of torture risk was not appealed against.  However, the heading of that decision and the title of the decision-maker included reference to TCAB in addition to NRCPO.  In my view, that was probably just a minor inadvertence in document-handling. It is obvious the proper putative respondent should be the NRCPO.

4.  In the oral hearing of this leave application on 30 December 2026, I explained the history of the Applicant’s non-refoulement claim to him through a Punjabi interpreter.  He later confirmed that his challenge was against the NRCPO’s Decision on 24 August 2021, even though it actually post-dated the Form 86.  While the Court should not generally allow a premature public law challenge to be filed with the Court, I consider the issue academic and find it beneficial to all parties concerned to focus on the substantive merits of the challenge against the NRCPO’s Decision.

5.  In these circumstances, I amended the Form 86 on my own motion to name the NRCPO as the putative respondent and the NRCPO’s Decision as the decision sought to be reviewed; I further added DI as a putative interested party to this application.

6.  The Applicant is a Pakistani national.  He claimed to be a member of a political party called PML(N) and in fear of being harmed/attacked by members of another political party called PPP, which had come to power after election.

7.  The Applicant first came to Hong Kong in 2002 and was removed back to Pakistan in 2003 after being found overstaying.  In 2007 he was arrested again in Hong Kong, this time for illegal entry.  He has since remained in Hong Kong.    

8.  After an oral hearing, the NRCPO Adjudicator came to the finding that the Applicant was not subject to any real risk of being harmed, killed or violated his fundamental human rights; neither was he under any well-founded fear of being persecuted so that he had to stay outside Pakistan. In coming to the finding, the NRCPO Adjudicator found significant discrepancy in the alleged events (e.g. the election year he was talking about), change of factual assertions over time and the Applicant overall speaking not credible.  The petition was thereby dismissed.   

9.  In his Form 86 and supporting affirmation in this leave application, the Applicant has not set out any substantive ground of judicial review, but merely reiterated that he cannot go back to his country because his life is not safe there.  In the oral hearing before this Court, he said nothing in substance in support of any challenge against the NRCPO Decision.

10.  It has been said 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).

11.  I have reviewed the Board’s Decision vigorously, but do not find the proposed judicial review reasonably arguable.  The leave application 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