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

HCAL 167/2020

[2025] HKCFI 3198

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 167 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 be amended on the court’s own motion.

2.   Leave is granted to the applicant to issue a judicial review application against the Board’s Decision.

3.   The applicant shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.

Observations for the Applicant:

Introduction

1.  By a “Notice of application for leave to apply for judicial review’ in the prescribed Form 86 filed on 16 January 2020, the applicant applied for leave to apply for judicial review (“Leave Application”).  The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 3 January 2020 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 20 December 2018 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on all applicable grounds except torture risk^[1].  Torture risk was covered in a prior decision of the Director dated 16 December 2013. The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000167_2020_files/the_Board's_Decision.pdf

2.  In his Form 86, the applicant named the Board as the interested party. As the Director should have been the interested party, the Form 86 will be accordingly amended on the court’s own motion.

3.  The basis of the applicant’s claim was that he would be harmed or killed by his cousins over a property dispute. The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them.  Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

4.  At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 19 June 2025.  The applicant attended the hearing in person.  After having heard from him, this court informed him that the decision would be reserved, and be sent to his updated address.

Discussion

5.  The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[2]  It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

6.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[3], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

7.  In his supporting affirmation, the applicant stated that he could not go back to his country because his life was not safe, and that he wished to stay in Hong Kong until his problem was solved.

8.  At the hearing, this court asked the applicant whether he had any grounds he wished to submit in support of his Leave Application.  The applicant stated that he had a stroke about a year ago and he is currently receiving treatment privately with the financial help of his friends. He stated that he needed more time to finish his treatment in Hong Kong. When he was asked if he wanted to elaborate further on the matters he had stated in the affirmation, he said that due to his sickness, his memory was not good and that he did not know what to say.

9.  As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality.[4] In the present case, the Board did not independently assess the credibility of the applicant’s evidence.  The Board found that the applicant did not have sufficient evidence to show that one of his cousins, Nadeem, would kill the applicant to get his property. It did not find that the dispute with Nadeem was enough to show that applicant had well-founded fear, and that his alleged risk to life was not genuine and substantial.  The Board concluded that there was no real risk of harm, and further that police protection and internal relocation should be available.  These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

10.  In the present case, however, it seems reasonably arguable that the Board’s Decision is erroneous in law, tainted by procedural unfairness, unreasonable and does not meet the required high standards of fairness, for the reasons set out below.

Lack of proper credibility assessment

11.  In finding that the applicant did not face real risk of harm, the Board appeared to have cherry-picked the applicant’s evidence in relation to the disputed property, the lack of title registration, and the alleged threats made by Nadeem without conducting a proper credibility assessment on the applicant’s account of the past threats and assaults by all three cousins.  Importantly, the Board appears to have erroneously applied its subjective common sense in its adverse findings. For example:

“[58] However, the [applicant] did not proceed with the registration.”

[60]   … if Nadeem was so powerful and well connected that he could kill anyone with impunity, he should have killed the [applicant’s] father not the applicant, so that Nadeem’s mother could get more share of the property from the grandfather, This scenario was based on the situation that if Nadeem was so ruthless as to kill his cousin, he should equally be ruthless to kill his uncle, all for the same purpose of getting more property.

[61] I do not find sufficient evidence that Nadeem would kill the [applicant] for his property. He might be just arguing with the [applicant with unfair tactics”

12.  Form the above, it appears that the Board arrived at the conclusion mostly based on its own assumptions rather than findings based on the evaluation of evidence. It is well established that the applying of a decision-maker’s own common sense in non-refoulement claims is wrong:  See ST v Betty Kwan[5] (which was later followed in TI v Winston Leung[6] at [61]).

13.  In light of the lack of meaningful assessment of all of the applicant’s evidence, the lack of reasoning in rejecting the applicant’s evidence and the fact that the Board has apparently applied its own common sense or assumptions in coming to the conclusion that the applicant did not face any risk of harm, I conclude that it is reasonably arguable that the Board’s Decision is tainted by an error of law, procedural unfairness or irrationality, and fails to meet the required high standards of fairness.

Failure to take into account favourable evidence

14.  High standards of fairness require a decision-maker to properly take into account every factor favourable to a re-foulement claimant[7], and allow the claimant to “be given every reasonable opportunity to establish his claim” [8]including drawing attention to matters that need clarification or elaboration or any issues that may result in adverse credibility findings so that they can be addressed by the claimant[9].

15.  In the circumstances, the Board was obligated by the high standards of fairness not only to give the applicant a reasonable opportunity to explain for the reason for the lack of registration, and why the Board believed that the threats by Nadeem were only use of unfair tactics as well as to take into account materials favourable to the applicant.  However, from the Board’s Decision, the Board appears to have failed to consider all the relevant matters including the past assaults and the threats made through the wife after the applicant fled his country.

16.  In my view, the Board’s finding of the absence of “risk of harm” on the basis that Nadeem was only employing unfair tactics and that he was no more than a local villain or petty criminal incapable of killing people; and that the property dispute could not have involved a large amount of money is procedurally unfair.

State protection and internal relocation

17.  At [55] of the Board’s Decision, the Board found that police protection and internal relocation would be available.  However, in coming to this conclusion, the Board did not cite or refer to any country COI.

18.  High standards of fairness require a Board to demonstrate that it has properly and independently assessed COI: A, B, C, D and E v Torture Claims Appeal Board, [2024] HKCA 471 at [33] – [34] when assessing the availability of state protection and internal relocation. In the present case, the Board failed to cite or refer to, let alone assess, any COI. Thus, there is no objective and reliable evidentiary basis for the Board’s findings as to police protection and internal relocation.  For these reasons, the Board’s Decision is arguably tainted with procedural unfairness, and unreasonable.

19.  For the above reasons, it seems at least reasonably arguable that the Board’s Decision is wrong at law, tainted by procedural unfairness and that it does not meet the required high standards of fairness.

Conclusion

20.  In the premises, and for all the given reasons, I am of the view that the applicant’s Leave Application is reasonably arguable on those grounds stated above, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

21.  Accordingly, I grant leave to the applicant to apply for judicial review of the Board’s decision, and direct that he shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.

Orders

22.  The Form 86 be amended on the court’s own motion.

23.  Leave is granted to the applicant to issue a judicial review application against the Board’s Decision.

24.  The applicant shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.

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