MEHMOOD FAISAL v. NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1308/2020

[2025] HKCFI 4493

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1308 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 on the Court’s own motion, naming only the Non-Refoulement Claims Petition Office as the Putative Respondent, and substituting “Non-Refoulement Claims Petition Office” in place of “TCAB” prior to the words “Date of Decision 21 May 2020”;

2.   Application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  The Applicant is from Pakistan.  By a Form 86 dated and filed on 26 June 2020 (“Form 86”), and a supporting affirmation also dated and filed on 26 June 2020 (“the Affirmation”), he sought leave to apply for judicial review of a decision of the Non‑Refoulement Claims Petition Office (“NRCPO”) dated 21 May 2020 (“NRCPO Decision”)[1], which was exhibited to his Affirmation.

2.  The Applicant sought an oral hearing of his application.  However, he failed to attend the scheduled hearing on 13 August 2025.  I have therefore dealt with his application on the papers.

3.  I have amended the Form 86 to properly identify the putative respondent and the nature of the NRCPO Decision.  I will use the abbreviations and definitions from the NRCPO Decision unless otherwise specified herein.

Background

4.  This is set out in the NRCPO 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 at risk of being harmed, ill-treated, or killed by one Mazhar, his paternal uncle;

b.  The Applicant had lodged a claim against Torture Risk[2] which was rejected on 22 November 2013, and against which no appeal was filed;

c.  On 5 October 2018 he filed an SCF to make non-refoulement claims under the USM, in which he indicated that information previously submitted in the TCF could be referred to. The claim was assessed on the grounds 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 October 2018 (“Director’s Decision”);

d.  The Applicant then petitioned to the NRCPO, which held a hearing in relation to the Applicant’s non-refoulement claims on 4 March 2020; and

e.  The NRCPO issued the NRCPO Decision on 21 May 2020, in which it decided that the Applicant had failed to establish a claim to non-refoulement relief on any of the three relevant bases 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.  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 NRCPO set out the Applicant’s procedural and immigration history, the three relevant types of risk, the nature of the hearing and documents before it, the Applicant’s case, the conduct of the hearing, and relevant principles relating to consideration of evidence including as to burden and standard of proof, sufficiency of materials, hearsay, past events, behaviour detrimental to credibility (as to which it also made a finding), COI, risk of harm (as to which it found that Mazhar was on the evidence a non-state actor), and the level of severity (Paragraphs 1 to 39).

11.  The NRCPO then moved summarised the Applicant’s case as to past events before making its material findings of fact.  It found for reasons given that there was no, or no reliable evidence to show, and it did not accept, that Mazhar would harm or kill the Applicant if he were to return to Pakistan, that the Applicant faced risk throughout Pakistan, that the Applicant had suffered injuries to the required severity, or that the state of Pakistan was unwilling to help the Applicant for a Convention reason (Paragraphs 40 to 45).

12.  The NRCPO then analysed Persecution Risk, and concluded that it was not established as there was no evidence of current risk to the Applicant, and there would be sufficient state protection available to him if he were refouled.  It also found that on the evidence, and having regard to the relevant principles, the Applicant had failed to establish BOR 2 Risk and BOR 3 Risk, although given the scope of the petition it did not deal with Torture Risk (Paragraphs 46 to 75).  The decision-maker also concluded that in any event internal relocation to Rawalpindi or Hyberabad was available and suitable for the Applicant (Paragraphs 76 to 80).  As the Applicant had failed to make out his claims for non‑refoulement relief in relation to the three relevant types of risk, the appeal/petition was rejected and the Director’s Decision confirmed (Paragraphs 81 to 84).

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.  This is especially so as to the assessment, reasoning, and findings regarding the evidence and COI materials, risk of harm, state protection, and internal relocation, which are all matters primarily within the province of the decision-making body.  Nor is there any public law basis to vitiate the decision-maker’s conclusions regarding Torture Risk, Persecution Risk, BOR 3 Risk, and BOR 2 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