Case Document

100%Judiciary

HCAL 3756/2019

[2025] HKCFI 1431

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3756 of 2019

BETWEEN
	Mahmood Faisal	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following;

consideration of documents only; or

consideration of documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge (Non-refoulement Claims) Philips Wong:

1. Form 86 be amended as follows:- (1) the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office be named as the Putative Respondent; and (2) the Director of Immigration be named as the Putative Interested Party.

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

Observations for the Applicant:

Introduction

1.By Form 86 filed on 17 December 2019 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against the decision of the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office (the “Board”) dated 13 December 2019 (the “Board’s Decision”).

2.In the Form, the Applicant has named both the Board and the Director of Immigration (the “Director”) as the proposed respondents, and has named the Board as the proposed interested party. As it is trite that the Board should be the proposed respondent whereas the Director should be the proposed interested party in an application of this sort, I make an order to amend the Form on the court’s own motion.

3.The Applicant had requested an oral hearing for the application. The hearing took place on 12 March 2025. The Applicant attended in person. The Applicant however indicated that he had nothing to say at the hearing (apart from confirming that this was the first time he applied for judicial review).

Background

4.The Applicant’s background, the basis of his claim and the arguments he advanced had been set out in details in the Board’s Decision, and it is not necessary for me to repeat the same here. The hyperlink to the Board’s Decision is included below[1] for reference.

Discussion

5.The applicable legal principles relating to application of this sort are well established. The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. Though in non-refoulement cases, the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence, country of origin information (COI) materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board. (See Nupur Mst v Director of Immigration [2018] HKCA 524, at §14)

6.In the Form, the Applicant alleged that the Board’s Decision was wrong and unfair, and that he was not satisfied with the decision. He further stated that relocation was not easy due to financial problems and many other things.

7.In the supporting Affirmation, the Applicant said he will be killed in Pakistan if he goes back there. He repeated that relocation would not be easy due to various reasons. He further claimed that a lot of families killed their children when they found out that their children had boyfriend or girlfriend which may make them feel ashamed in his home country.

8.I have considered the Board’s Decision in details. I do not find any error of law, procedural unfairness or irrationality. Neither has the Applicant been able to demonstrate any of the same. The Applicant’s criticism of the Board’s Decision in the Form is vague and lacks particulars.

9.On the issue of relocation, there is nothing to indicate that the Board had failed to take into account any relevant matters. There is equally nothing to indicate that the Board had erred in its analysis or finding. The Board was entitled to come to the conclusion it did on relocation (see §§18, 28, 83 to 89 of the Board’s Decision). It is also important to note that in the present case, the Board found that the Applicant had failed to establish a real risk in his home area. So, strictly speaking, the Board did not even need to address the issue of relocation (§§83 to 84 of the Board’s Decision). I do not see how the Board’s Decision in this regard can be said to be in error.

10.What the Applicant said in the supporting Affirmation had also been considered by the Board (see for example §§8 to 17, 20 to 25, 60 to 73 of the Board’s Decision). The fact that the Applicant does not agree with the views or findings of the Board does not mean that the Board had committed any errors. The Board was entitled to come to such findings based on the evidence.

11.The Board’s Decision was comprehensive with adequate reasons provided. It satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational. I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success. Accordingly, I refuse to grant leave for judicial review.

12.Leave application of this sort is meant to be a filtering process and I am not expected to give elaborated reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23). Suffice for me to state that in reaching the decision, I have considered all the relevant documents before me, as well as the grounds advanced by the Applicant.

Conclusion

13.In the premises, I make an order that the Form be amended as described above and the Leave Application be dismissed.

Dated the 11^th day of April 2025

	(Alfred Chan)
	for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 11/4/2025 Mahmood Faisal Applicant’s ref. no: Nil		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 11/4/2025 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 10967/18/3/419/P2120 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 323/18 (formerly RBCZ 12253/16) [T8S130] Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)