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

HCAL 1291/2020

[2025] HKCFI 4426

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1291 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;

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 24 June 2020 (“Form 86”), and a supporting affirmation also dated and filed on 24 June 2020 (“the Affirmation”), he sought leave to apply for judicial review of a decision of the Torture Claims Appeal Board (“TCAB”)/Non-Refoulement Claims Petition Office (“NRCPO”) dated 2 April 2020 (“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. However, he did not appear at the scheduled hearing on 13 August 2025. I have hence dealt with his application on the papers.

Background

3.  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 one Dawood (his neighbour) and Dawood’s relatives;

b.  The claim was assessed on the grounds of Torture Risk[2], BOR 3 Risk[3], BOR 2 Risk[4] and Persecution Risk[5] and was rejected by the Director of Immigration (“Director”) in a decision dated  18 February 2019;

c.  The Applicant petitioned/appealed to the TCAB/NRCPO, which held hearings in relation to the Applicant’s non-refoulement claims on 9 September 2019, 4 October 2019, and 27 March 2020; and

d.  The TCAB/NRCPO issued the TCAB Decision on 2 April 2020.

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 one alleged ground for judicial review, namely “I believe that the Director of Immigration and the Adjudicator of Appeal Board reached the decision wrongly in assessing my Non‑refoulement Claims.  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 that I may face if I am deported back to my country.” This has been copied almost word for word from other cases.

8.  However, once the Applicant had pursued his appeal 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).  Hence the portions that relate to the Director and/or the Director’s Decision (which is in any event not specified as a decision in respect of which relief is sought) are not reasonably arguable and must be dismissed. 

9.  Furthermore, the remaining portion of the alleged 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 §17; 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, supra, 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 the alleged ground mentioned in the Form 86.

11.  The TCAB/NRCPO set out the Applicant’s procedural and immigration history (Paragraphs 1 to 13) and matters in relation to the conduct of the three hearings (Paragraphs 14 to 24). It then outlined the structure of the TCAB Decision (Paragraphs 25 to 26), which began with material information related to the Applicant’s claims including evidence adopted by the Applicant from the Hearing Bundle (Paragraphs 27 to 68), evidence given in testimony at the hearing, and the Applicant’s submissions in reply to those of the Director (Paragraphs 69 to 125). This was followed by the principles and approach applied in relation to the assessment of material facts and credibility (Paragraphs 126 to 141).

12.  The decision-maker then set out, with reasons and reference to the underlying documents and evidence before him, his findings as to the evidence and credibility. These included his conclusion that the core facts alleged by the Applicant in support of his claim for non-refoulement were not credible, and his rejection thereof (Paragraphs 142 to 155). He analysed the elements of Torture Risk in detail and with reference to the relevant facts and COI, found that the necessary elements were not established, that there was no real risk that the Applicant would experience harm if he were refouled, and that state protection was available. He concluded that the Applicant hence did not qualify for non-refoulement protection on the basis of Torture Risk (Paragraphs 156 to 198). He carried out a similar exercise in relation to each of BOR 3 Risk, Persecution Risk, and BOR 2 Risk, having regard to salient elements, the facts, state protection, and in the case of Persecution Risk also internal relocation (which he found to be available and reasonable even if the claims of alleged harm were credible). The Applicant therefore did not qualify for non-refoulement protection on the basis of any of the four types of risk, and the TCAB/NRCPO affirmed the Director’s Decision (Paragraphs 199 to 256).

13.  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 given that the assessment, reasoning, and findings regarding credibility, the evidence, the risk of harm, state protection and internal relocation (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.

14.  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

15.  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