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

HCAL 1461/2020

[2025] HKCFI 5637

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1461 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 Form 86 is amended on the Court’s own motion, substituting “/Non-Refoulement Claims Petition Office” in place of “Immigration Tower Wan Chai”, and by adding “/Non-Refoulement Claims Petition Office” in front of “DATE 5 JUNE 2020”; and

2.  The 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 filed on 13 July 2020 (“Form 86”), which was accompanied by a supporting Affirmation also dated and filed on 13 July 2020 (“the Affirmation”), the Applicant sought leave to apply for judicial review of a decision of the Torture Claims Appeal Board (“TCAB”)/Non-Refoulement Claims Petition Office (“NRCPO”) made on 5 June 2020 (“the TCAB Decision”)[1]. I will use the abbreviations and definitions from the TCAB Decision unless otherwise specified herein.

2.  The Applicant sought and attended the oral hearing of his application as scheduled on 21 August 2025. He said he had nothing to say in addition to the matters set out in the papers.

3.  I have amended the Form 86 of my own motion to reflect the proper identity of the Putative Respondent, and the nature of the decision.

Background

4.  This is set out in the TCAB Decision. While I will not repeat the contents thereof, in summary and in relation to the assessment of his claim:

(1)  The Applicant claimed non-refoulement relief on the basis that if he were sent back to Pakistan, he would be harmed or killed by Mukarab and his followers;

(2)  The claim was assessed on the grounds of Torture Risk[2], BOR 2 Risk[3], BOR 3 Risk[4], and Persecution Risk[5] and was rejected by the Director of Immigration (“Director”) in a decision dated 22 November 2018 (“Director’s Decision”);

(3)  The Applicant appealed/petitioned to the TCAB/NRCPO, which held a hearing in relation to the Applicant’s non-refoulement claim on 8 May 2020; and

(4)  The TCAB/NRCPO issued the TCAB Decision on 5 June 2020, in which it dismissed the Applicant’s appeal/petition, and confirmed the Director’s Decision.

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.  The Form 86 does not identify any grounds of judicial review. In the Affirmation the Applicant merely says he does not agree with the TCAB Decision. That is clearly not a ground of judicial review. There is hence no allegation of any procedural unfairness in relation to, and/or of any error of law in, and/or 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, as well as both of the Complaints made in the Affirmation.

10.  The TCAB/NRCPO set out the Applicant’s background including the facts relied on by him in relation to his non-refoulement claim, followed by his immigration and procedural history, his appearance at and the conduct of the hearing, and the relevant law and principles in relation to the four types of risk as well as on relevant issues such as state protection (Paragraphs 1 to 41).

11.  The TCAB/NRCPO then turned to the issue of credibility where it concluded that, and gave reasons as to why, it found the Applicant’s evidence unreliable. It then went on to reject the existence of Persecution Risk given the lack of a Convention reason, and given also the availability of reasonable state protection based on COI. The existence of both BOR 2 Risk and BOR 3 Risk were rejected, and regard in relation to the latter type of risk was had to the availability of reasonable state protection, the evidence of the Applicant’s injuries, the decision-maker’s finding that ill-treatment had not attained the minimum level of severity, and a finding that on all of the evidence, the Applicant faced no genuine and risk of ill-treatment if refouled. The existence of Torture Risk was also rejected with regard to the availability of state protection and to the concept of both active and passive state acquiescence, and the decision-maker similarly found that on the evidence there was no foreseeable, real, personal, and present risk that the Applicant would be tortured if refouled. The Applicant’s application for non-refoulement relief hence failed on all grounds, the appeal/petition was dismissed, and the Director’s Decision was confirmed (Paragraphs 42 to 95)

12.  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 that justifies the grant of leave. This is especially so as to the assessment, reasoning, and findings regarding the issues of evidence, credibility, state protection, and risk of harm, which are matters primarily within the province of the decision-making body. I hence also see no public law basis to vitiate the decision-maker’s conclusions regarding Torture Risk, Persecution Risk, BOR 3 Risk, and BOR 2 Risk. Indeed, even if the TCAB/NRCPO erred in law in considering the potential scope of BOR 2 Risk, that would not in and of itself vitiate the conclusion in the TCAB Decision and justify the grant of leave given its rejection of BOR 3 Risk, the underlying reasons for such, and the absence of any public law basis to vitiate such. There is hence no basis, and it would be futile, for me to grant leave to apply for judicial review on that ground (See Kulwinder Kaur [2022] HKCA 49 at §§54 59, Sandhu Vinny [2022] HKCFI 2327 at §§24-26, [2023] HKCA 1261 at §§30, 32-33)

13.  I am therefore 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 made the orders above, including that the application for leave to apply for judicial review 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