Anees Muhammad v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
|
HCAL 2402/2020 [2025] HKCFI 4606 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2402 of 2020
Application for Leave to Apply for Judicial Review Following;
Order by Deputy High Court Judge (Non-refoulement Claims) Philips Wong:
Observations for the Applicant: Introduction 1.By Form 86 filed on 8 December 2020 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against (1) the decision of the Director of Immigration (the “Director”) dated 29 November 2018; and (2) the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 25 November 2020 (the “Board’s Decision”). 2.The Applicant requested an oral hearing for the application. The hearing took place on 25 August 2025 and the Applicant attended in person. At the hearing, I pointed out to the Applicant that the court is not aware of a decision of the Director dated 29 November 2018. However, there was a decision of the Director dated 20 November 2018 (the “Director’s Decision”) in respect of which the Applicant appealed to the Board. The Applicant responded by saying that he may have mistaken about the date and he was indeed referring to the decision dated 20 November 2018. Accordingly, I make an order that the date of the Director’s decision stated on the Form be amended to 20 November 2018. 3.The Director’s Decision had already been superseded by the Board’s Decision. The Director’s Decision is not susceptible to judicial review once appeal to the Board had been pursued (see Re: Moshsin Ali [2018] HKCA 549, at §§31-45). Accordingly, in so far as the Applicant seeks leave to apply for judicial review in relation to the Director’s Decision, the application fails in limine and is hereby dismissed. 4.In the Form, the Applicant named the Director and the adjudicator responsible for the Board’s Decision as the proposed respondents, and 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, I make an order to amend the Form on the court’s own motion. 5.At the hearing on 25 August 2025, apart from clarifying the date of the Director’s Decision stated on the Form, the Applicant indicated that he had nothing to say in respect of the Leave Application. He said everything is in the documents filed. Background 6.The Applicant’s background, the basis of his claim and the arguments he advanced had been set out in detail in the Board’s Decision, and it is not necessary for me to repeat the same here. The hyperlink to the Board’s Decision[1] is included below for reference. Discussion 7.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 or procedural unfairness or irrationality in the decision of the Board. (See Nupur Mst v Director of Immigration [2018] HKCA 524, at §14) 8.The Applicant did not provide any grounds in support of the Leave Application in the Form. In the supporting Affirmation, the Applicant stated that the Board erred because he cannot relocate anywhere in Pakistan, as his alleged enemy will easily find him. 9.I have considered the Board’s Decision in detail. I do not find any error of law, procedural unfairness or irrationality. Neither has the Applicant been able to demonstrate any of the same. There is nothing to indicate that the Board had failed to take into account any relevant matters. The Board’s Decision was comprehensive with adequate reasons provided. The Board was entitled, and indeed correct, to reject the claim based on the evidence (§§29-44 of the Board’s Decision). The Board’s Decision 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. 10.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 11.In the premises, I make an order that the Form be amended as described above and the Leave Application be dismissed. Dated the 3rd day of October 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 | ||||||||||||||||||||||||||||||||||
Cases cited in this judgment