Mehmood Muhammad Khalid v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 129/2020

[2025] HKCFI 1690

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 129 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;

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

1.  The Form 86 is amended on the Court’s own motion; and

2.  Leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.By a Form 86 filed on 13 January 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review of the decision of the Director of Immigration (the “DOI”) dated 30 May 2019 and the “decision of the Adjudicator” dated 31 December 2019.  He named the DOI and “an Adjudicator of Non-Refoulement Claims petition Office appointed to determine the applicant’s petition” as proposed respondents and the DOI and the Torture Claims Appeal Board (the “TCAB”) as interested parties.

2.From the papers filed for this application, there was a decision dated 31 December 2019 made by the TCAB (the “TCAB Decision”) which affirmed the decision dated 20 May 2019 by the DOI refusing the Applicant’s non-refoulement protection claim.  I take it that the Applicant is seeking judicial review of the TCAB Decision as the appeal against the DOI’s decision before the TCAB was a de novo hearing.

3.I accordingly amended the Form 86 on my own motion to name only the TCAB as the putative respondent and only the DOI as a putative interested party.

4.The Applicant requested for a hearing of this application and he attended the same.

Background

5.The Applicant is a national of Pakistan.  He seeks non-refoulement protection on the basis that his life will be in danger if he is returned due to a land dispute with his family members. His personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be assessed through a hyperlink[1], and I shall not repeat the same herein.

Discussion

6.In a judicial review, this court does not provide a further avenue of appeal.  Though in non-refoulement case an enhanced standard in scrutinizing the decision of the TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI are the primary decision-makers.  This 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 (Nupur Mst v Director of Immigration [2018] HKCA 524, [14(1)]).  There must be a reasonably arguable claim with a realistic prospect of success before leave for judicial review will be granted (Peter Po Fun Chan v Winnie Cheung & Anr (2007) 10 HKCFAR 676).

7.In his affirmation filed in support of this application, the Applicant alleged that the “decisions” were unreasonable, the Director failed to consider all the matters raised, and that the “decisions” failed to take into account many things and “assues” [sic.].  In his Form 86, the Applicant attached a set of complaints against “the Director’s Decision”, however they were but generic criticisms such as weight to be attached to evidence or mere assertions that different conclusions should have been reached.

8.At the hearing, the Applicant stated that he had settled things with one of the brothers but not the other, and if everything can be settled he would be willing to return.

9.As indicated above, it is the TCAB Decision that is susceptible to judicial review and I will only consider the TCAB Decision.

10.Looking at the TCAB Decision, the Applicant’s case and evidence were all placed before the TCAB, including the Applicant’s oral testimony before the TCAB [6-8, 38-49].  After careful consideration, taking into account relevant COI, the TCAB concluded that the Applicant’s alleged risks were not sufficiently made out [50-55].

11.The TCAB proceeded to analyse each of the four applicable grounds under the USM, applying the correct legal principles in respect of each, as well as those pertaining to internal relocation and assessment approach [10-37], and came to the conclusions that none was made out [56-80].

12.All in all, I do not see any error of law, procedural unfairness or irrationality in the TCAB Decision, whether as alleged by the Applicant or otherwise, despite rigorous examination and anxious scrutiny.

Conclusion

13.For the above reasons, I am not satisfied that this court should intervene by way of judicial review.  I therefore dismiss the application.

Dated the 25^th day of April 2025

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